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Alkali Manufacturers Assn. of India and Ors Vs. Designated Authority, D.A.D.A.S. and Ors | India is a party. The purpose behind the imposition of the duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding the domestic markets with goods at rates which are lower than the rate at which the exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to the domestic market. The levy of dumping duty is a method recognized by GATT which seeks to remedy the injury and at the same time balances the right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry. 17. In Reliance Industries Ltd. v. Designated Authority and Ors. (2006) 10 SCC 368 this Court has observed thus: The result was that an industrial base was created in India after independence and this has definitely resulted in some progress. The purpose of Section 9-A can, therefore, easily be seen. The purpose was that our industries which had been built up after independence with great difficulties must not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. This is done by selling goods at a very low price for some time so that the domestic industries cannot compete and are thereby destroyed, and after such destruction has taken place, prices are again raised. The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping, while allowing for healthy competition. The purpose is not protectionism in the classical sense (as proposed by the German economist Friedrich List in his famous book National System of Political Economy published in 1841) but to prevent unfair trade practices. The 1995 Amendment to Section 9A was apparently made in pursuance to Article VI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) which permitted anti-dumping measures as an instrument of fair competition. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilise domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run. 18. Recently in Commissioner of Customs, Bangalore v. G.M. Exports and Ors. 2015 (1) SCALE 169 , while dealing with the concept of injury, a two-Judge Bench has observed: It will thus be seen that the determination of material injury to domestic industry depends on a series of complex economic factors which are to be segregated from other factors which may also cause injury to the said industry. 19. It is pertinent to note that except M/s. Hanwha Chemical Corporation, the other exporters did not cooperate. However, it was the obligation of the complainant to establish that there was an injury to the domestic industry. For the said purpose, the endeavour was made to establish before the DA that it was a by-product and it succeeded in the said attempt. The tribunal, on being approached by the 7th Respondent, has set aside the order and the notification. As is noticeable, the reversal has taken place on two counts, namely, the principle determined in M/s. Hanwha Chemical Corporations case, and further by taking notice of the fact that the cost of Chlorine was substantial during the said period and, therefore, it deserved to be treated as a co-product as per the 1967 Rules. The approach of the tribunal, as we see, is fallacious. It has observed that M/s. Hanwha Chemical Corporations case is absolutely different. In such a situation, it should not have mechanically adopted the said principle. That apart, as submitted by Mr. Patil, it has followed a general principle of the rise in price but has not dwelt upon the issue with regard to the concept, i.e., Equal Economic Importance. The Equal Economic Importance, as is canvassed, is the price almost similar to the main product, i.e. caustic soda. Mr. Patil, learned senior Counsel, would contend that it would depend upon the realization of amount from sales. It is submitted by him that the Appellant had received 82% from sales of caustic soda and 18% from the sale of Chlorine subject to certain variations. 20. Mr. Bagaria, learned senior Counsel, has put forth that the amount reflected in the accounts may be correct for the purpose of accounting as provided under the Companies Act, 1956 and other purposes but the words Equal Economic Importance being not defined in Paragraph 12 to Schedule III of the 1967 Rules, it has to be determined on the facts of each case. Learned Counsel would contend that the use of chlorine and its commercial use should have gone into by the tribunal. Elaborating the same, it is contended that the Chlorine can be used for some other production. 21. In our considered opinion, the tribunal should have dwelled upon the said facet before it recorded the finding whether it is a co-product or a by-product. It is because the Equal Economic Importance has to be considered on a rational and pragmatic basis. It is the duty of the tribunal to see whether the DA had considered the said aspects or proceeded on hypothetical basis. The tribunal has the jurisdiction to appreciate the evidence in entirety and arrive at a conclusion and that having not been done and the entire judgment having been based on the application of M/s. Hanwha Chemical Corporations case and the price rise in the price of Chlorine, we are constrained to dislodge the judgment and order of the tribunal. | 1[ds]19. It is pertinent to note that except M/s. Hanwha Chemical Corporation, the other exporters did not cooperate. However, it was the obligation of the complainant to establish that there was an injury to the domestic industry. For the said purpose, the endeavour was made to establish before the DA that it was a by-product and it succeeded in the said attempt. The tribunal, on being approached by the 7th Respondent, has set aside the order and the notification. As is noticeable, the reversal has taken place on two counts, namely, the principle determined in M/s. Hanwha Chemical Corporations case, and further by taking notice of the fact that the cost of Chlorine was substantial during the said period and, therefore, it deserved to be treated as a co-product as per the 1967 Rules. The approach of the tribunal, as we see, is fallacious. It has observed that M/s. Hanwha Chemical Corporations case is absolutely different. In such a situation, it should not have mechanically adopted the said principle. That apart, as submitted by Mr. Patil, it has followed a general principle of the rise in price but has not dwelt upon the issue with regard to the concept, i.e., Equal Economic Importance. The Equal Economic Importance, as is canvassed, is the price almost similar to the main product, i.e. caustic soda.21. In our considered opinion, the tribunal should have dwelled upon the said facet before it recorded the finding whether it is a co-product or a by-product. It is because the Equal Economic Importance has to be considered on a rational and pragmatic basis. It is the duty of the tribunal to see whether the DA had considered the said aspects or proceeded on hypothetical basis. The tribunal has the jurisdiction to appreciate the evidence in entirety and arrive at a conclusion and that having not been done and the entire judgment having been based on the application of M/s. Hanwha Chemical Corporations case and the price rise in the price of Chlorine, we are constrained to dislodge the judgment and order of the tribunal. | 1 | 6,946 | 393 | ### 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:
India is a party. The purpose behind the imposition of the duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding the domestic markets with goods at rates which are lower than the rate at which the exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to the domestic market. The levy of dumping duty is a method recognized by GATT which seeks to remedy the injury and at the same time balances the right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry. 17. In Reliance Industries Ltd. v. Designated Authority and Ors. (2006) 10 SCC 368 this Court has observed thus: The result was that an industrial base was created in India after independence and this has definitely resulted in some progress. The purpose of Section 9-A can, therefore, easily be seen. The purpose was that our industries which had been built up after independence with great difficulties must not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. This is done by selling goods at a very low price for some time so that the domestic industries cannot compete and are thereby destroyed, and after such destruction has taken place, prices are again raised. The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping, while allowing for healthy competition. The purpose is not protectionism in the classical sense (as proposed by the German economist Friedrich List in his famous book National System of Political Economy published in 1841) but to prevent unfair trade practices. The 1995 Amendment to Section 9A was apparently made in pursuance to Article VI of the General Agreement on Tariffs and Trade 1994 (GATT 1994) which permitted anti-dumping measures as an instrument of fair competition. The concept of anti-dumping is founded on the basis that a foreign manufacturer sells below the normal value in order to destabilise domestic manufacturers. Dumping, in the short term, may give some transitory benefits to the local customers on account of lower priced goods, but in the long run destroys the local industries and may have a drastic effect on prices in the long run. 18. Recently in Commissioner of Customs, Bangalore v. G.M. Exports and Ors. 2015 (1) SCALE 169 , while dealing with the concept of injury, a two-Judge Bench has observed: It will thus be seen that the determination of material injury to domestic industry depends on a series of complex economic factors which are to be segregated from other factors which may also cause injury to the said industry. 19. It is pertinent to note that except M/s. Hanwha Chemical Corporation, the other exporters did not cooperate. However, it was the obligation of the complainant to establish that there was an injury to the domestic industry. For the said purpose, the endeavour was made to establish before the DA that it was a by-product and it succeeded in the said attempt. The tribunal, on being approached by the 7th Respondent, has set aside the order and the notification. As is noticeable, the reversal has taken place on two counts, namely, the principle determined in M/s. Hanwha Chemical Corporations case, and further by taking notice of the fact that the cost of Chlorine was substantial during the said period and, therefore, it deserved to be treated as a co-product as per the 1967 Rules. The approach of the tribunal, as we see, is fallacious. It has observed that M/s. Hanwha Chemical Corporations case is absolutely different. In such a situation, it should not have mechanically adopted the said principle. That apart, as submitted by Mr. Patil, it has followed a general principle of the rise in price but has not dwelt upon the issue with regard to the concept, i.e., Equal Economic Importance. The Equal Economic Importance, as is canvassed, is the price almost similar to the main product, i.e. caustic soda. Mr. Patil, learned senior Counsel, would contend that it would depend upon the realization of amount from sales. It is submitted by him that the Appellant had received 82% from sales of caustic soda and 18% from the sale of Chlorine subject to certain variations. 20. Mr. Bagaria, learned senior Counsel, has put forth that the amount reflected in the accounts may be correct for the purpose of accounting as provided under the Companies Act, 1956 and other purposes but the words Equal Economic Importance being not defined in Paragraph 12 to Schedule III of the 1967 Rules, it has to be determined on the facts of each case. Learned Counsel would contend that the use of chlorine and its commercial use should have gone into by the tribunal. Elaborating the same, it is contended that the Chlorine can be used for some other production. 21. In our considered opinion, the tribunal should have dwelled upon the said facet before it recorded the finding whether it is a co-product or a by-product. It is because the Equal Economic Importance has to be considered on a rational and pragmatic basis. It is the duty of the tribunal to see whether the DA had considered the said aspects or proceeded on hypothetical basis. The tribunal has the jurisdiction to appreciate the evidence in entirety and arrive at a conclusion and that having not been done and the entire judgment having been based on the application of M/s. Hanwha Chemical Corporations case and the price rise in the price of Chlorine, we are constrained to dislodge the judgment and order of the tribunal.
### Response:
1
### Explanation:
19. It is pertinent to note that except M/s. Hanwha Chemical Corporation, the other exporters did not cooperate. However, it was the obligation of the complainant to establish that there was an injury to the domestic industry. For the said purpose, the endeavour was made to establish before the DA that it was a by-product and it succeeded in the said attempt. The tribunal, on being approached by the 7th Respondent, has set aside the order and the notification. As is noticeable, the reversal has taken place on two counts, namely, the principle determined in M/s. Hanwha Chemical Corporations case, and further by taking notice of the fact that the cost of Chlorine was substantial during the said period and, therefore, it deserved to be treated as a co-product as per the 1967 Rules. The approach of the tribunal, as we see, is fallacious. It has observed that M/s. Hanwha Chemical Corporations case is absolutely different. In such a situation, it should not have mechanically adopted the said principle. That apart, as submitted by Mr. Patil, it has followed a general principle of the rise in price but has not dwelt upon the issue with regard to the concept, i.e., Equal Economic Importance. The Equal Economic Importance, as is canvassed, is the price almost similar to the main product, i.e. caustic soda.21. In our considered opinion, the tribunal should have dwelled upon the said facet before it recorded the finding whether it is a co-product or a by-product. It is because the Equal Economic Importance has to be considered on a rational and pragmatic basis. It is the duty of the tribunal to see whether the DA had considered the said aspects or proceeded on hypothetical basis. The tribunal has the jurisdiction to appreciate the evidence in entirety and arrive at a conclusion and that having not been done and the entire judgment having been based on the application of M/s. Hanwha Chemical Corporations case and the price rise in the price of Chlorine, we are constrained to dislodge the judgment and order of the tribunal.
|
Ayodhya Faizabad Development Authorityand Anr Vs. Ram Newaj and others | (hereinafter referred to as the Act 2013) , the Ayodhya Faizabad Development Authority and another has preferred the present appeal. 2. We have heard learned counsel for the respective parties at length. We have perused the impugned judgment and order passed by the High Court. 3. By the impugned judgment and order the High Court has held that the acquisition proceedings with respect to the three plots in question shall stand lapsed under sub-section (2) of Section 24 of the Act, 2013 solely on the ground that, though the deposit of the compensation was made in the Treasury, but the same was not deposited in the Court and consequently the payment of compensation of the amount was not made to the land owners. The High Court has relied upon the decision of this Court in the case of Delhi Development Authority versus Sukhbir Singh and others, (2016) 16 SCC 258 . However, in view of the subsequent decision of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129, the impugned judgment and order passed by the High Court is unsustainable. In paragraph 366 of the aforesaid judgment this Court has observed and held as under: 366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 361. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 3.1 Applying the law laid down by this Court in the case of Indore Development Authority (supra) and in the present case as the amount of compensation was deposited with the Treasury and even the possession was already taken over on 07.09.2005, the impugned judgment and order passed by the High Court holding that the land acquisition proceedings with respect to the lands in question are deemed to have lapsed deserves to be quashed and set aside. | 1[ds]However, in view of the subsequent decision of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129, the impugned judgment and order passed by the High Court is unsustainable. In paragraph 366 of the aforesaid judgment this Court has observed and held as under:366. In view of the aforesaid discussion, we answer the questions as under:366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.361. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.3.1 Applying the law laid down by this Court in the case of Indore Development Authority (supra) and in the present case as the amount of compensation was deposited with the Treasury and even the possession was already taken over on 07.09.2005, the impugned judgment and order passed by the High Court holding that the land acquisition proceedings with respect to the lands in question are deemed to have lapsed deserves to be quashed and set aside. | 1 | 1,257 | 965 | ### 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:
(hereinafter referred to as the Act 2013) , the Ayodhya Faizabad Development Authority and another has preferred the present appeal. 2. We have heard learned counsel for the respective parties at length. We have perused the impugned judgment and order passed by the High Court. 3. By the impugned judgment and order the High Court has held that the acquisition proceedings with respect to the three plots in question shall stand lapsed under sub-section (2) of Section 24 of the Act, 2013 solely on the ground that, though the deposit of the compensation was made in the Treasury, but the same was not deposited in the Court and consequently the payment of compensation of the amount was not made to the land owners. The High Court has relied upon the decision of this Court in the case of Delhi Development Authority versus Sukhbir Singh and others, (2016) 16 SCC 258 . However, in view of the subsequent decision of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129, the impugned judgment and order passed by the High Court is unsustainable. In paragraph 366 of the aforesaid judgment this Court has observed and held as under: 366. In view of the aforesaid discussion, we answer the questions as under: 366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act. 366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed. 366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse. 366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act. 366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act. 366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b). 366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2). 366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition. 361. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years. 3.1 Applying the law laid down by this Court in the case of Indore Development Authority (supra) and in the present case as the amount of compensation was deposited with the Treasury and even the possession was already taken over on 07.09.2005, the impugned judgment and order passed by the High Court holding that the land acquisition proceedings with respect to the lands in question are deemed to have lapsed deserves to be quashed and set aside.
### Response:
1
### Explanation:
However, in view of the subsequent decision of this Court in the case of Indore Development Authority versus Manoharlal and others, (2020) 8 SCC 129, the impugned judgment and order passed by the High Court is unsustainable. In paragraph 366 of the aforesaid judgment this Court has observed and held as under:366. In view of the aforesaid discussion, we answer the questions as under:366.1. Under the provisions of Section 24(1)(a) in case the award is not made as on 1-1-2014, the date of commencement of the 2013 Act, there is no lapse of proceedings. Compensation has to be determined under the provisions of the 2013 Act.366.2. In case the award has been passed within the window period of five years excluding the period covered by an interim order of the court, then proceedings shall continue as provided under Section 24(1)(b) of the 2013 Act under the 1894 Act as if it has not been repealed.366.3. The word or used in Section 24(2) between possession and compensation has to be read as nor or as and. The deemed lapse of land acquisition proceedings under Section 24(2) of the 2013 Act takes place where due to inaction of authorities for five years or more prior to commencement of the said Act, the possession of land has not been taken nor compensation has been paid. In other words, in case possession has been taken, compensation has not been paid then there is no lapse. Similarly, if compensation has been paid, possession has not been taken then there is no lapse.366.4. The expression paid in the main part of Section 24(2) of the 2013 Act does not include a deposit of compensation in court. The consequence of non-deposit is provided in the proviso to Section 24(2) in case it has not been deposited with respect to majority of landholdings then all beneficiaries (landowners) as on the date of notification for land acquisition under Section 4 of the 1894 Act shall be entitled to compensation in accordance with the provisions of the 2013 Act. In case the obligation under Section 31 of the Land Acquisition Act, 1894 has not been fulfilled, interest under Section 34 of the said Act can be granted. Non-deposit of compensation (in court) does not result in the lapse of land acquisition proceedings. In case of nondeposit with respect to the majority of holdings for five years or more, compensation under the 2013 Act has to be paid to the landowners as on the date of notification for land acquisition under Section 4 of the 1894 Act.366.5. In case a person has been tendered the compensation as provided under Section 31(1) of the 1894 Act, it is not open to him to claim that acquisition has lapsed under Section 24(2) due to non-payment or non-deposit of compensation in court. The obligation to pay is complete by tendering the amount under Section 31(1). The landowners who had refused to accept compensation or who sought reference for higher compensation, cannot claim that the acquisition proceedings had lapsed under Section 24(2) of the 2013 Act.366.6. The proviso to Section 24(2) of the 2013 Act is to be treated as part of Section 24(2), not part of Section 24(1)(b).366.7. The mode of taking possession under the 1894 Act and as contemplated under Section 24(2) is by drawing of inquest report/memorandum. Once award has been passed on taking possession under Section 16 of the 1894 Act, the land vests in State there is no divesting provided under Section 24(2) of the 2013 Act, as once possession has been taken there is no lapse under Section 24(2).366.9. Section 24(2) of the 2013 Act does not give rise to new cause of action to question the legality of concluded proceedings of land acquisition. Section 24 applies to a proceeding pending on the date of enforcement of the 2013 Act i.e. 1-1-2014. It does not revive stale and timebarred claims and does not reopen concluded proceedings nor allow landowners to question the legality of mode of taking possession to reopen proceedings or mode of deposit of compensation in the treasury instead of court to invalidate acquisition.361. The provisions of Section 24(2) providing for a deemed lapse of proceedings are applicable in case authorities have failed due to their inaction to take possession and pay compensation for five years or more before the 2013 Act came into force, in a proceeding for land acquisition pending with the authority concerned as on 1-1-2014. The period of subsistence of interim orders passed by court has to be excluded in the computation of five years.3.1 Applying the law laid down by this Court in the case of Indore Development Authority (supra) and in the present case as the amount of compensation was deposited with the Treasury and even the possession was already taken over on 07.09.2005, the impugned judgment and order passed by the High Court holding that the land acquisition proceedings with respect to the lands in question are deemed to have lapsed deserves to be quashed and set aside.
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Chintpurni Medical College and Hospital and Ors Vs. Union of India (UOI) and Ors | 1. The instant writ petition has been filed by the Petitioners-college challenging the ban imposed on it by Respondent No. 1-Union of India for admitting the students for two academic years i.e. 2017-18 and 2018-19. This ban was imposed in pursuance of a direction from the Oversight Committee that if deficiencies are found after inspection is conducted, the Petitioner-college shall be banned for a period of two years. An inspection was conducted on 7.3.2017 and several deficiencies were found with the Petitioner-college. It is not necessary to go into the details of the deficiencies in view of the following order we propose to pass:We find that the Petitioner-college is admittedly and completely devoid of students. The students have already been shifted to some other medical colleges by the State Government. We find it difficult to accept the contention of learned Counsel appearing on behalf of the Petitioners that they have teaching staff.2. Having regard to that, no purpose would be served even if any relief granted to the Petitioners in respect of two years i.e. 2017-18 and 2018-19 for which they have been banned since there are no students in their college. | 0[ds]It is not necessary to go into the details of the deficiencies in view of the following order we propose to pass:We find that the Petitioner-college is admittedly and completely devoid of students. The students have already been shifted to some other medical colleges by the State Government. We find it difficult to accept the contention of learned Counsel appearing on behalf of the Petitioners that they have teaching staff2. Having regard to that, no purpose would be served even if any relief granted to the Petitioners in respect of two years i.e. 2017-18 and 2018-19 for which they have been banned since there are no students in their college. | 0 | 207 | 122 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. The instant writ petition has been filed by the Petitioners-college challenging the ban imposed on it by Respondent No. 1-Union of India for admitting the students for two academic years i.e. 2017-18 and 2018-19. This ban was imposed in pursuance of a direction from the Oversight Committee that if deficiencies are found after inspection is conducted, the Petitioner-college shall be banned for a period of two years. An inspection was conducted on 7.3.2017 and several deficiencies were found with the Petitioner-college. It is not necessary to go into the details of the deficiencies in view of the following order we propose to pass:We find that the Petitioner-college is admittedly and completely devoid of students. The students have already been shifted to some other medical colleges by the State Government. We find it difficult to accept the contention of learned Counsel appearing on behalf of the Petitioners that they have teaching staff.2. Having regard to that, no purpose would be served even if any relief granted to the Petitioners in respect of two years i.e. 2017-18 and 2018-19 for which they have been banned since there are no students in their college.
### Response:
0
### Explanation:
It is not necessary to go into the details of the deficiencies in view of the following order we propose to pass:We find that the Petitioner-college is admittedly and completely devoid of students. The students have already been shifted to some other medical colleges by the State Government. We find it difficult to accept the contention of learned Counsel appearing on behalf of the Petitioners that they have teaching staff2. Having regard to that, no purpose would be served even if any relief granted to the Petitioners in respect of two years i.e. 2017-18 and 2018-19 for which they have been banned since there are no students in their college.
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C. M. Vareekutty Vs. C. M. Mathukutty | A-10 and that the plaintiff was at liberty to raise the question of the validity of Ex. A-10 which was to be made an issue in the suit itself. The order of stay granted by the trial Court was, therefore, set aside and the suit was directed to be disposed of with the maximum expedition at any rate up to the point of the preliminary decree. It was reiterated in the order of the High Court that the question of genuineness of Ex. A-10 was not to be made an issue in the suit. The suit was to be tried on that footing. Thereafter the suit was taken up by the learned Subordinate Judge. The defendant declined to file a written statement and contended that there was nothing further to be done in the suit except to pass a preliminary decree for partition in terms of Ex. A-10. The plaintiff, however, filed an application for amendment of the plaint by substituting a new schedule of properties. In this new schedule fuller and correct particulars were given of the properties previously mentioned in the original plaint. A few new items were also included. The application for amendment of the plaint was opposed by the defendant. The learned Subordinate Judge allowed the amendment but the High Court of Kerala allowed a civil revision petition filed by the defendant and dismissed the application for amending the plaint. Varadaraja Iyengar, J. who disposed of the civil revision petition took the view that the application for amendment ought not have been allowed as according to the learned Judge the direction given by the High Court previously barred the trial Court from deciding any question other than that relating to the validity of Ex. A-10. In that view the learned Judge directed the trial Court to decide the question of validity of Ex. A-10 and passed a preliminary decree. Thereafter the learned Subordinate Judge pronounced upon the validity of Ex. A-10 and, holding it to be valid, passed a preliminary decree. The plaintiff preferred an appeal to the High Court of Kerala against the preliminary decree passed by the High Court and in the appeal he once again pleaded that the application for amending the plaint should have been allowed. The High Court found merit in the contention of the plaintiff, directed the plaint to be amended and remanded the suit to the trial Court for fresh disposal. The High Court was of the view that its earlier order did not preclude the plaintiff from seeking an amendment of the plaint nor did it prescribe any special procedure for the disposal of the suit. According to the High Court all that the High Court had done on the earlier occasion was to preclude the parties from agitating the question of genuineness of Ex. A-10. It was said that the earlier order of the High Court did not and could not enable the trial Court to pass a preliminary decree without a written statement and a trial of the suit2. In this appeal by the defendant Shri Vepa P. Sarathi learned counsel contended that the High Court was wholly unjustified in interfering with the judgment and decree of the learned Subordinate Judge as it could not be said that the learned Subordinate Judge had committed any error. On the other hand Shri Govindan Nair, learned counsel for the plaintiff argued that no decree could have been passed on the basis of Ex. A-10 when the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A-10 and when there had been no trial of the court. He drew our attention to the circumstance that Ex. A-10 was never marked as an exhibit in the suit. The exhibit mark given to the document was in the application for stay of the proceedings in the suit3. Having heard both the learned counsel we do not think that we will be justified in interfering with the order of the High Court. As pointed out by the High Court the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A- 10, no issues had been framed and there was no trial as such of the suit. It is also clear from a perusal of the first order passed by the High Court of Madras that it did not bar a trial of the suit; all that it did was to bar the question of the genuineness of Ex. A-10 from being freshly agitated. The appropriate procedure for the defendant was to file a written statement claiming that a decree should be passed in terms of Ex. A-10, if he so desired and thereafter for the trial Court to follow the procedure prescribed by law. Ex. A-10 itself does not specify the items of properties and it was, therefore, clearly open to the parties to specify how the various items of properties had to be allotted to them. The plaintiff claimed that some properties had not been fully and correctly described in the original plaint schedule and that due to ignorance some properties had been omitted. The High Court allowed the application for amendment of the plaint and we do not see any justification for interfering with the decision of the High Court allowing the amendment of the plaint. Shri Sarathi urged that even after the passing of the preliminary decree it would be open to the parties to give correct particulars of the properties and, therefore, there was no need to set aside the preliminary decree now. Instead of the parties continuing to wilfully agitate the question of the identity of every item of property in the final decree proceedings, we think that it is desirable that the plaintiff should be permitted to amend the plaint to raise in the written statement to be filed by him. That is precisely what the High Court has ordered to be done in the judgment under appeal. | 0[ds]3. Having heard both the learned counsel we do not think that we will be justified in interfering with the order of the High Court. As pointed out by the High Court the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A10, no issues had been framed and there was no trial as such of the suit. It is also clear from a perusal of the first order passed by the High Court of Madras that it did not bar a trial of the suit; all that it did was to bar the question of the genuineness of Ex.from being freshly agitated. The appropriate procedure for the defendant was to file a written statement claiming that a decree should be passed in terms of Ex.if he so desired and thereafter for the trial Court to follow the procedure prescribed by law. Ex.itself does not specify the items of properties and it was, therefore, clearly open to the parties to specify how the various items of properties had to be allotted to them. The plaintiff claimed that some properties had not been fully and correctly described in the original plaint schedule and that due to ignorance some properties had been omitted. The High Court allowed the application for amendment of the plaint and we do not see any justification for interfering with the decision of the High Court allowing the amendment of the plaint. Shri Sarathi urged that even after the passing of the preliminary decree it would be open to the parties to give correct particulars of the properties and, therefore, there was no need to set aside the preliminary decree now. Instead of the parties continuing to wilfully agitate the question of the identity of every item of property in the final decree proceedings, we think that it is desirable that the plaintiff should be permitted to amend the plaint to raise in the written statement to be filed by him. That is precisely what the High Court has ordered to be done in the judgment under appeal. | 0 | 1,398 | 372 | ### 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:
A-10 and that the plaintiff was at liberty to raise the question of the validity of Ex. A-10 which was to be made an issue in the suit itself. The order of stay granted by the trial Court was, therefore, set aside and the suit was directed to be disposed of with the maximum expedition at any rate up to the point of the preliminary decree. It was reiterated in the order of the High Court that the question of genuineness of Ex. A-10 was not to be made an issue in the suit. The suit was to be tried on that footing. Thereafter the suit was taken up by the learned Subordinate Judge. The defendant declined to file a written statement and contended that there was nothing further to be done in the suit except to pass a preliminary decree for partition in terms of Ex. A-10. The plaintiff, however, filed an application for amendment of the plaint by substituting a new schedule of properties. In this new schedule fuller and correct particulars were given of the properties previously mentioned in the original plaint. A few new items were also included. The application for amendment of the plaint was opposed by the defendant. The learned Subordinate Judge allowed the amendment but the High Court of Kerala allowed a civil revision petition filed by the defendant and dismissed the application for amending the plaint. Varadaraja Iyengar, J. who disposed of the civil revision petition took the view that the application for amendment ought not have been allowed as according to the learned Judge the direction given by the High Court previously barred the trial Court from deciding any question other than that relating to the validity of Ex. A-10. In that view the learned Judge directed the trial Court to decide the question of validity of Ex. A-10 and passed a preliminary decree. Thereafter the learned Subordinate Judge pronounced upon the validity of Ex. A-10 and, holding it to be valid, passed a preliminary decree. The plaintiff preferred an appeal to the High Court of Kerala against the preliminary decree passed by the High Court and in the appeal he once again pleaded that the application for amending the plaint should have been allowed. The High Court found merit in the contention of the plaintiff, directed the plaint to be amended and remanded the suit to the trial Court for fresh disposal. The High Court was of the view that its earlier order did not preclude the plaintiff from seeking an amendment of the plaint nor did it prescribe any special procedure for the disposal of the suit. According to the High Court all that the High Court had done on the earlier occasion was to preclude the parties from agitating the question of genuineness of Ex. A-10. It was said that the earlier order of the High Court did not and could not enable the trial Court to pass a preliminary decree without a written statement and a trial of the suit2. In this appeal by the defendant Shri Vepa P. Sarathi learned counsel contended that the High Court was wholly unjustified in interfering with the judgment and decree of the learned Subordinate Judge as it could not be said that the learned Subordinate Judge had committed any error. On the other hand Shri Govindan Nair, learned counsel for the plaintiff argued that no decree could have been passed on the basis of Ex. A-10 when the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A-10 and when there had been no trial of the court. He drew our attention to the circumstance that Ex. A-10 was never marked as an exhibit in the suit. The exhibit mark given to the document was in the application for stay of the proceedings in the suit3. Having heard both the learned counsel we do not think that we will be justified in interfering with the order of the High Court. As pointed out by the High Court the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A- 10, no issues had been framed and there was no trial as such of the suit. It is also clear from a perusal of the first order passed by the High Court of Madras that it did not bar a trial of the suit; all that it did was to bar the question of the genuineness of Ex. A-10 from being freshly agitated. The appropriate procedure for the defendant was to file a written statement claiming that a decree should be passed in terms of Ex. A-10, if he so desired and thereafter for the trial Court to follow the procedure prescribed by law. Ex. A-10 itself does not specify the items of properties and it was, therefore, clearly open to the parties to specify how the various items of properties had to be allotted to them. The plaintiff claimed that some properties had not been fully and correctly described in the original plaint schedule and that due to ignorance some properties had been omitted. The High Court allowed the application for amendment of the plaint and we do not see any justification for interfering with the decision of the High Court allowing the amendment of the plaint. Shri Sarathi urged that even after the passing of the preliminary decree it would be open to the parties to give correct particulars of the properties and, therefore, there was no need to set aside the preliminary decree now. Instead of the parties continuing to wilfully agitate the question of the identity of every item of property in the final decree proceedings, we think that it is desirable that the plaintiff should be permitted to amend the plaint to raise in the written statement to be filed by him. That is precisely what the High Court has ordered to be done in the judgment under appeal.
### Response:
0
### Explanation:
3. Having heard both the learned counsel we do not think that we will be justified in interfering with the order of the High Court. As pointed out by the High Court the defendant had not filed any written statement claiming that a decree should be passed in terms of Ex. A10, no issues had been framed and there was no trial as such of the suit. It is also clear from a perusal of the first order passed by the High Court of Madras that it did not bar a trial of the suit; all that it did was to bar the question of the genuineness of Ex.from being freshly agitated. The appropriate procedure for the defendant was to file a written statement claiming that a decree should be passed in terms of Ex.if he so desired and thereafter for the trial Court to follow the procedure prescribed by law. Ex.itself does not specify the items of properties and it was, therefore, clearly open to the parties to specify how the various items of properties had to be allotted to them. The plaintiff claimed that some properties had not been fully and correctly described in the original plaint schedule and that due to ignorance some properties had been omitted. The High Court allowed the application for amendment of the plaint and we do not see any justification for interfering with the decision of the High Court allowing the amendment of the plaint. Shri Sarathi urged that even after the passing of the preliminary decree it would be open to the parties to give correct particulars of the properties and, therefore, there was no need to set aside the preliminary decree now. Instead of the parties continuing to wilfully agitate the question of the identity of every item of property in the final decree proceedings, we think that it is desirable that the plaintiff should be permitted to amend the plaint to raise in the written statement to be filed by him. That is precisely what the High Court has ordered to be done in the judgment under appeal.
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State Of Assam Vs. Jilkadar Ali | = (AIR 1966 SC 1614 ) this Court interpreted Article 7 and held that the word migrated was capable of two meanings. In its narrower connotation it meant going from one place to another with the intention of residing permanently in the latter place; in its wider connotation it simply meant going from one place to another whether or not with the intention of permanent residence in the latter place. In Article 7 the word was used in its wider sense though it did not take in movement which was involuntary or for a specific purpose and for a short and limited period. Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as a peon in the sub-registrars Office, his staying there thereafter for a long period, his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile, there can be no doubt that he had gone to Pakistan permanently. His movement to Pakistan thus was neither involuntary nor for a short or limited period, but was clearly with the definite intention of having a permanent place of abode there. His case thus fell within Article 7 and therefore on his entry in India on April 4, 1955 he was a person who was deemed not to be a citizen of India. 8. In (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) the question of the applicability of Article 7 did not arise and was not considered presumably because it was not contended that Fida Hussian had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950. The Court, therefore, considered only Clause (1) of Section 2 (1) of the Foreigners Act, 1946 and not its Cl.(3) as it stood before its amendment in 1957. It appears that the only date available there was the date of his entry in 1953, when the unamended definition prevailed. It could not, therefore, be said that he had migrated from India between March 1, 1947 and January 26, 1950, and that therefore, he would be deemed not to be a citizen of India under Article 7. In our view, the High Court could not have relied on Fida Hussains case, (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) for its conclusion that the respondent was not a foreigner in April 1955, and that therefore, Cl.7 of the Foreigners Order could not apply to him. 9. Clause 7 of the Foreigners Order 1948 by its sub-clause (1) requires every foreigner who enters India on the authority of a visa to obtain a permit from the relevant authority indicating the period during which he is authorised to remain in India. The visa obtained by the respondent permitted him to stay in India till January 26, 1956. If he wanted to stay beyond that period, it was incumbent on him as provided by sub-clause (3) of Clause 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa. In the absence of such an extension he was bound to depart from India on January 26, 1956. Admittedly he did not, but on the contrary continued to remain in India until he was detected in 1964. 10. Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957. But whether the respondent was exempted under that order or not is entirely irrelevant for the purposes of Clause 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a Foreigner entering India under a visa does not overstay beyond the period for which the visa permits him to stay in this Country. By overstaying here without the required extension the respondent clearly violated the provisions of Clause 7 (1) and (3) of the Foreigners Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this Country, and therefore, a foreigner even under the definition of foreigner in S.2 of the Foreigners Act before it was amended in 1957. 11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal that is with regard to a person who, notwithstanding Article 5, is to be deemed not to be a citizen under Article 7, and therefore, a foreigner within the meaning of Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428 another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after their entry by reason of the amendment of the definition in 1957. This decision again cannot assist the respondent in view of our conclusion with regard to Article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India. 12. In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 of the Foreigners Act, 1946. He was, therefore, rightly convicted and sentenced by the Trial Magistrate. The High Court, in our view, erred in setting aside that order of conviction and sentence. | 1[ds]11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal that is with regard to a person who, notwithstanding Article 5, is to be deemed not to be a citizen under Article 7, and therefore, a foreigner within the meaning of Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428 another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after their entry by reason of the amendment of the definition in 1957. This decision again cannot assist the respondent in view of our conclusion with regard to Article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India12. In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 ofthe Foreigners Act, 1946. He was, therefore, rightly convicted and sentenced by the Trial Magistrate. The High Court, in our view, erred in setting aside that order of conviction and sentence. | 1 | 2,316 | 326 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
= (AIR 1966 SC 1614 ) this Court interpreted Article 7 and held that the word migrated was capable of two meanings. In its narrower connotation it meant going from one place to another with the intention of residing permanently in the latter place; in its wider connotation it simply meant going from one place to another whether or not with the intention of permanent residence in the latter place. In Article 7 the word was used in its wider sense though it did not take in movement which was involuntary or for a specific purpose and for a short and limited period. Considering the facts of the present case, viz., the option exercised by the respondent for Pakistan service his having secured release from Indian service as a constable, his going to Pakistan and obtaining service there as a peon in the sub-registrars Office, his staying there thereafter for a long period, his obtaining Pakistani passport and visas declaring therein that he had acquired Pakistani citizenship and domicile, there can be no doubt that he had gone to Pakistan permanently. His movement to Pakistan thus was neither involuntary nor for a short or limited period, but was clearly with the definite intention of having a permanent place of abode there. His case thus fell within Article 7 and therefore on his entry in India on April 4, 1955 he was a person who was deemed not to be a citizen of India. 8. In (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) the question of the applicability of Article 7 did not arise and was not considered presumably because it was not contended that Fida Hussian had migrated to the territory which fell within Pakistan between March 1, 1947 and January 26, 1950. The Court, therefore, considered only Clause (1) of Section 2 (1) of the Foreigners Act, 1946 and not its Cl.(3) as it stood before its amendment in 1957. It appears that the only date available there was the date of his entry in 1953, when the unamended definition prevailed. It could not, therefore, be said that he had migrated from India between March 1, 1947 and January 26, 1950, and that therefore, he would be deemed not to be a citizen of India under Article 7. In our view, the High Court could not have relied on Fida Hussains case, (1962) 1 SCR 776 = (AIR 1961 SC 1522 ) for its conclusion that the respondent was not a foreigner in April 1955, and that therefore, Cl.7 of the Foreigners Order could not apply to him. 9. Clause 7 of the Foreigners Order 1948 by its sub-clause (1) requires every foreigner who enters India on the authority of a visa to obtain a permit from the relevant authority indicating the period during which he is authorised to remain in India. The visa obtained by the respondent permitted him to stay in India till January 26, 1956. If he wanted to stay beyond that period, it was incumbent on him as provided by sub-clause (3) of Clause 7 to obtain from the relevant authority thereunder an extension of the period mentioned in the visa. In the absence of such an extension he was bound to depart from India on January 26, 1956. Admittedly he did not, but on the contrary continued to remain in India until he was detected in 1964. 10. Dr. Mahmood, however, relied on the Registration of Foreigners (Exemption) Order, 1957. But whether the respondent was exempted under that order or not is entirely irrelevant for the purposes of Clause 7 of the Foreigners Order, 1948, whose purpose clearly is to see that a Foreigner entering India under a visa does not overstay beyond the period for which the visa permits him to stay in this Country. By overstaying here without the required extension the respondent clearly violated the provisions of Clause 7 (1) and (3) of the Foreigners Order, 1948 in view of our conclusion that he was a person who was deemed not to be a citizen of this Country, and therefore, a foreigner even under the definition of foreigner in S.2 of the Foreigners Act before it was amended in 1957. 11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal that is with regard to a person who, notwithstanding Article 5, is to be deemed not to be a citizen under Article 7, and therefore, a foreigner within the meaning of Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428 another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after their entry by reason of the amendment of the definition in 1957. This decision again cannot assist the respondent in view of our conclusion with regard to Article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India. 12. In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 of the Foreigners Act, 1946. He was, therefore, rightly convicted and sentenced by the Trial Magistrate. The High Court, in our view, erred in setting aside that order of conviction and sentence.
### Response:
1
### Explanation:
11. The decision in State v. Ibrahim Nabiji, AIR 1959 Bom 526 referred to by counsel also does not assist as it did not have to deal with the point arising in the present appeal that is with regard to a person who, notwithstanding Article 5, is to be deemed not to be a citizen under Article 7, and therefore, a foreigner within the meaning of Section 2 (a) of the Foreigners Act as it stood in 1955. The State v. Yakub, AIR 1961 All 428 another decision relied on by Dr. Mahmood, merely laid down that persons who are sought to be brought within the scope and ambit of Clause 7 of the Foreigners Order, 1948 are persons who are not citizens of India, and that that clause did not apply to those who were not foreigners at the date of their entry although they may become foreigners after their entry by reason of the amendment of the definition in 1957. This decision again cannot assist the respondent in view of our conclusion with regard to Article 7 by reason of which the respondent even at the date of his entry in 1955 was deemed not to be a citizen of India12. In our view the respondent was a foreigner when he entered India in April 1955 as the definition of foreigner then stood, and by overstaying beyond the period permissible under the visa on the strength of which he had entered India he clearly committed breach of Clause 7 of the Foreigners Order, 1946 and was liable to be punished under Section 14 ofthe Foreigners Act, 1946. He was, therefore, rightly convicted and sentenced by the Trial Magistrate. The High Court, in our view, erred in setting aside that order of conviction and sentence.
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Lt. Col. Nitisha & Ors Vs. Union of India & Ors | pensionable service. (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC. (emphasis supplied) Directions (e), (f) and (g) are not material at this stage. Direction (d) refers to existing SSC officers with more than 14 years of service. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service. 114. The petitioners in Lt. Col. Reena Gairola v. Union of India(Writ Petition (Civil) No. 34 of 2021) and in Major Nilam Gorwade v. Union of India(Writ Petition (Civil) No. 1223 of 2020) belong to the group of women officers recruited under the WSES(O)- 27 to 31 and SSCW(T&NT) 1 to 3. These petitioners were commissioned on or after March 2006 and had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra). Under the directions in Babita Puniya (supra), in case they do not opt for PC or opt for PC and are not granted PC, they will be released at the end of their 14 years of contractual service. The petitioners in these batches would neither be entitled to pension as they would have only completed 14 years of service at the end of their contract, nor would they be given the one time relief granted in Babita Puniya (supra) of entitlement to continue in service for 20 years. 115. The petitioners in the abovementioned writ petitions have argued that within their batches (WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3), 161 women have been granted PC, out of the 284 serving officers. 66 officers who were not approved for PC (allegedly, inter alia, as a consequence of the medical criteria and ACR assessment) and 9 officers who did not opt for PC, have to retire at the end of their contractual term of 14 years, with no pension or benefits. It is pertinent to mention that these petitioners were not a party before this Court in Babita Puniya (supra) and consequently could not make out a case for their entitlement to a similar relief for extension till they attain pensionable service, in light of the respondents failing to consider them in time, despite the petitioners being beneficiaries of the judgment of the Delhi High Court. 116. The case of the petitioners is also that at the time of rendering of the judgment of the Delhi High Court in 2010, these WSSCOs had completed a maximum of 4 years in service (or less). Once relief was granted to them by the Delhi High Court and the interim order of the Supreme Court, these WSSCOs took a conscious decision based on these reliefs to continue in service, in anticipation that sooner or later, they would be granted PC. Had they been rejected for PC upon the judgment of the Delhi High Court in 2010, that is over a decade ago, it would have been easier for them to make a career shift and seek employment elsewhere. 117. This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya (supra), was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The one-time benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. The Courts objective in providing for such a cut- off was to compensate for the impact of the discrimination which had denied them timely opportunities and to account for the significant risk and commitment they demonstrated by their continuation in service. 118. It has been brought to our attention that the women officers in the batches of WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3 face a similar predicament as they are being considered for PC beyond their 10th year in service (in the best case). Similar to the women in the older cadres who were denied opportunities, career progressions and assurances owing to the respondents failure at the relevant time to ensure gender equality in the forces; the women in the batches who were between 10-14 years of their service were meted the same insecurity. The WSES scheme has been discontinued and the WSES(O) 31, commissioned in 2008, is the last batch to have gained entry in the scheme, rendering it a dying cadre. We have deployed the expression dying cadre not in a pejorative sense. The expression has a specific meaning in service jurisprudence to denote a dwindling class of officers in service. The officers in the consequent batches of SSCW (T&NT) 1 to 3, although part of the new scheme that replaced WSES, will be the only batches who will face an adverse impact of the respondents failure to implement the Delhi High Court judgement before the 10th year of their service. In exercise of the constitutional power entrusted to this court under Article 142 to bring about substantial justice, we are compelled to extend the benefit of directions (c) and (d) in Babita Puniya (supra) to the officers of the abovementioned batches, as a one-time benefit. This one-time extension, would bring parity inter se between officers who were discriminated by their non-timely consideration by the respondents. H Conclusion and directions | 0[ds]45. Indirect discrimination is closely tied to the substantive conception of equality outlined above. The doctrine of substantive equality and anti- stereotyping has been a critical evolution of the Indian constitutional jurisprudence on Article 14 and 15(1). The spirit of these tenets have been endorsed in a consistent line of authority by this Court. To illustrate, in Anuj Garg v. Hotel Association of India (2008) 3 SCC 1 , this Court held that laws premised on sex-based stereotypes are constitutionally impermissible, in that they are outmoded in content and stifling in means. The Court further held that no law that ends up perpetuating the oppression of women could pass scrutiny. Barriers that prevent women from enjoying full and equal citizenship, it was held, must be dismantled, as opposed to being cited to validate an unjust status quo. In National Legal Services Authority v. Union of India (2014) 5 SCC 438 , this Court recognized how the patterns of discrimination and disadvantage faced by the transgender community and enumerated a series of remedial measures that can be taken for their empowerment. In Jeeja Ghosh v. Union of India (2016) 7 SCC 761 and Vikash Kumar v. Union Public Service Commission 2021 SCC OnLine SC 84 this Court recognized reasonable accommodation as a substantive equality facilitator.46. The jurisprudence relating to indirect discrimination in India is still at a nascent stage. Having said that, indirect discrimination has found its place in the jurisprudence of this Court in Navtej Singh Johar v. Union of India (2018) 10 SCC 1 , paras 442-446, where one of us (Chandrachud J), in holding Section 377 of the Indian Penal Code as unconstitutional insofar as it decriminalizes homosexual intercourse amongst consenting adults, drew on the doctrine of indirect discrimination. This was in arriving at the conclusion that this facially neutral provision disproportionately affected members of the LGBT community. This reliance was in affirmation of the decision of the Delhi High Court in Naz Foundation v. Government of NCT of Delhi (2009) 111 DRJ 1 (DB) which had relied on the Declaration of Principles of Equality issued by the Equal Rights Trust Act in 2008 in recognizing that indirect discrimination occurs when a provision, criterion or practice would put persons having a status or a characteristic associated with one or more prohibited grounds at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary.(Id. at para 93) Similarly, this Court has recognized the fashion in which discrimination operates by dint of structures of oppression and domination which prevent certain groups from enjoying the full panoply of entitlements.( Indian Young Lawyers Assn. v. State of Kerala, 2018 SCC OnLine SC 1690, (Chandrachud J., concurring opinion, paragraph 117); Joseph Shine v. Union of India, 2018 SC OnLine SC 1676, (Chandrachud J, concurring opinion, para 38) (Joseph Shine)) The focus in antidiscrimination enquiry, has switched from looking at the intentions or motive of the discriminator to examining whether a rule, formally or substantively, contributes to the subordination of a disadvantaged group of individuals(Ibid, Joseph Shine).47. Indirect discrimination has also been recognized by the High Courts in India(Patel Suleman Gaibi v. State of Maharashtra, 2014 SCC OnLine Bom 4639). For instance, in the matters of public sector employment, the Delhi High Court in Inspector (Mahila) Ravina v. Union of India(Writ Petition (C) 4525 of 2014, Delhi High Court (6 August 2015)) and in Madhu v. Northern Railways, has upheld challenges to conditions of employment, which though appear to be neutral, have an adverse effect on one section of the society. Bhat, J., while analyzing the principles of indirect discrimination in Madhu (supra), held:20. This Court itself has recognised that actions taken on a seemingly innocent ground can in fact have discriminatory effects due to the structural inequalities that exist between classes. When the CRPF denied promotion to an officer on the ground that she did not take the requisite course to secure promotion, because she was pregnant, the Delhi High Court struck down the action as discriminatory. Such actions would inherently affect women more than men. The Court in Inspector (Mahila) Ravina v. Union of India W.P.(C) 4525/2014 stated,A seemingly neutral reason such as inability of the employee, or unwillingness, if not probed closely, would act in a discriminatory manner, directly impacting her service rights. That is exactly what has happened here: though CRPF asserts that seniority benefit at par with the petitioners colleagues and batchmates (who were able to clear course No. 85) cannot be given to her because she did not attend that course, in truth, her unwillingness stemmed from her inability due to her pregnancy.48. We must clarify here that the use of the term indirect discrimination is not to refer to discrimination which is remote, but is, instead, as real as any other form of discrimination. Indirect discrimination is caused by facially neutral criteria by not taking into consideration the underlying effects of a provision, practice or a criterion(Interchangeably referred as PCP).66. A study of the above cases and scholarly works gives rise to the following key learnings. First, the doctrine of indirect discrimination is founded on the compelling insight that discrimination can often be a function, not of conscious design or malicious intent, but unconscious/implicit biases or an inability to recognize how existing structures/institutions, and ways of doing things, have the consequence of freezing an unjust status quo. In order to achieve substantive equality prescribed under the Constitution, indirect discrimination, even sans discriminatory intent, must be prohibited.67. Second, and as a related point, the distinction between direct and indirect discrimination can broadly be drawn on the basis of the former being predicated on intent, while the latter is based on effect (US, South Africa, Canada). Alternatively, it can be based on the fact that the former cannot be justified, while the latter can (UK). We are of the considered view that the intention versus effects distinction is a sound jurisprudential basis on which to distinguish direct from indirect discrimination. This is for the reason that the most compelling feature of indirect discrimination, in our view, is the fact that it prohibits conduct, which though not intended to be discriminatory, has that effect. As the Canadian Supreme Court put it in Ontario HRC (supra), requiring proof of intention to establish discrimination puts an insuperable barrier in the way of a complainant seeking a remedy.( Ontario HRC (supra n. 60), para 14) It is this barrier that a robust conception of indirect discrimination can enable us to counteract.68. Third, on the nature of evidence required to prove indirect discrimination, statistical evidence that can establish how the impugned provision, criteria or practice is the cause for the disproportionately disadvantageous outcome can be one of the ways to establish the play of indirect discrimination. As Professor Sandra Fredman notes, Aptitude tests, interview and selection processes, and other apparently scientific and neutral measures might never invite scrutiny unless data is available to dislodge these assumptions.(Sandra Fredman, Discrimination Law (supra n. 28) at p. 187) Consistent with the Canadian Supreme Courts approach in Fraser (supra), we do not think that it would be wise to lay down any quantitative thresholds for the nature of statistical disparity that must be established for a claimant to succeed. Equally, we do not think that an absolutist position can be adopted as to the nature of evidence that must be brought forth to succeed in a case of indirect discrimination. The absence of any statistical evidence or inability to statistically demonstrate exclusion cannot be the sole ground for debunking claims of indirect discrimination. This was clarified by the European Court of Human Rights in a case concerning fifteen Croatians of Roma origin claiming racial discrimination and segregation in schools with Roma-only classes. In assessing the claims of the fifteen Croatians, the court observed that indirect discrimination can be proved without statistical evidence(Orsus and others v. Croatia, [2010] ECHR 337, para 153). Therefore, statistical evidence demonstrating patterns of exclusion, can be one of the ways to prove indirect discrimination.69. Fourth, insofar as the fashion in which the indirect discrimination enquiry must be conducted, we think that the two-stage test laid down by the Canadian Supreme Court in Fraser (supra) offers a well-structured framework of analysis as it accounts for both the disproportionate impact of the impugned provision, criteria or practice on the relevant group, as well as the harm caused by such impact. It foregrounds an examination of the ills that indirect discrimination seeks to remedy.70. Fifth and finally, while assessing the justifiability of measures that are alleged to have the effect of indirect discrimination, the Court needs to return a finding on whether the narrow provision, criteria or practice is necessary for successful job performance. In this regard, some amount of deference to the employer/defendants view is warranted. Equally, the Court must resist the temptation to accept generalizations by defendants under the garb of deference and must closely scrutinize the proffered justification. Further, the Court must also examine if it is possible to substitute the measures with less discriminatory alternatives. Only by exercising such close scrutiny and exhibiting attentiveness to the possibility of alternatives can a Court ensure that the full potential of the doctrine of indirect discrimination is realized and not lost in its application.( Sandra Fredman, Discrimination Law (supra n. 28) at p. 194)71. As noted in the analysis above, the emphasis on intent alone as the key to unlocking discrimination has resulted in several practices, under the veneer of objectivity and equal application to all persons, to fall through the cracks of our equality jurisprudence. Indirect discrimination as a tool of jurisprudential analysis, can result in the redressal of several inequities by probing provisions, criteria or practice that have a disproportionate and adverse impact on members of groups who belong to groups that are constitutionally protected from discrimination under Article 15(1). However, it needs to be emphasized that a strict emphasis on using only one of the two tools (between direct and indirect discrimination) to establish and redress discrimination may often result in patterns and structures of discrimination remaining unaddressed.77. Therefore, an analysis of discrimination, with a view towards its systemic manifestations (direct and indirect), would be best suited for achieving our constitutional vision of equality and antidiscrimination. Systemic discrimination on account of gender at the workplace would then encapsulate the patriarchal disadvantage that permeates all aspects of her being from the outset, including reproduction, sexuality and private choices which operate within an unjust structure. In propounding this analysis, this Court is conscious of the practical limitations of every framework to understanding workforces, considering the bulk of litigation against systemic discrimination, would be from members of an organized and formal workforce who would have the wherewithal and evidence of patterns or practices to bolster their claims. For the laboring class in India, which is predominantly constituted by members facing multiple axels of marginalization, litigating their right to work with equality and dignity may be a distant dream. However, it is our earnest hope, that a vision of systemic discrimination, would aid members of even informal workforces who, in addition to battling precarity at their places of work, will be able to assert a right to equality and dignity. A framework that would situate their discrimination, against systemic societal patterns of discrimination that are constituted and compounded by social and economic structures, would help in addressing several fractures that are contributing to inequality in our society.78. In the dispute at hand, this Court is tasked with a duty to analyse the implementation of its earlier directions in Babita Puniya (supra) that struck down a directly discriminatory practice of excluding WSSCOs from PC. The petitioners claim of further discrimination in implementation, will have to be analyzed from the framework of systemic discrimination (which encompasses indirect discrimination), to determine a constitutional violation. In examining a retroactive grant of PC, a study of the systemic impact of the prolonged denial of PC to women and the evaluation structures and patterns therein, would be indispensable.83. There is a fundamental fallacy in the entire line of reasoning which has been advanced by the Army authorities both in the counter affidavit as well as in the written submissions of the ASG. The Policy Letter dated 15 January 1991 indicates that(i) A maximum of 250 SSCOs will be granted PC annually;(ii) A minimum cut-off grade 60 per cent is fixed, which is reviewable every two years;(iii) In case more than 250 officers fulfill the cut-off grade of 60 per cent, only 250 would be granted PC on competitive merit; and(iv) Other than non-optees and those unfit for retention, all others would be granted an extension of 5 years.84. The clear intent of the policy letter is that the issue of applying competitive merit arises only if more than 250 officers fulfill the cut-off grade annually. If the number of officers who achieved the 60 per cent cut-off is less than 250, then evidently there is no requirement of assessing inter se competitive merit among the officers who meet the minimum threshold.85. In the present case, there are a total of 615 women officers for consideration, across several batches. As many as 32 batches were under consideration. Annexure WR-6 to the written submissions of the Union of India carries the details of PC granted to male officers.86. The above table has been filed by the ASG as a part of his submissions, to counter the contention of the women officers that whereas most male officers have been granted PC, the number of women officers is abysmally low. The above chart provides for(i) The number of male officers passing out;(ii) The number of male officers granted PC; and(iii) The percentage of those granted PC under (ii) as a proportion of the officers passing out in (i).87. The chart, however, suppresses an important feature which is the number of officers who had not opted for being considered for PC (described in the parlance as non-optees). In other words, the percentage of male officers granted PC has been computed in the chart without disclosing the factual details of the number of male officers who had not opted for PC. Only when the number of optees is considered against the non-optees, can the percentage of male officers who were successfully granted PC be accurately determined. This is a significant omission on the part of the Army authorities from which an adverse interference must be drawn. However there is another and more fundamental aspect which emerges from the disclosure which has been made in the above chart by the Army authorities. The chart indicates the number of officers who were granted PC during the course of the selections which took place twice every year. A close reading of the data would show that in a number of years, the male officers who were granted PC was far lower than the ceiling of 250 vacancies prescribed by the policy letter of the MoD dated 15 January 1991.88. The statistics which have been advanced by the Army authorities disclose two things. Firstly, in a number of years between 1994 and 2010, the ceiling limit of 250 had not been crossed. If the ceiling limit of 250 had not been crossed, the justification which has been offered for benchmarking women officers against the lowest male officers of the corresponding batch turns out to be specious and a red-herring. Evidently, in their anxiety to rebut the submission of the petitioners in regard to the disparity in the percentage of male and female officers granted PC, the statistics which have been placed on the record, completely demolish the case for benchmarking. It is also necessary to understand is that in many years the ceiling of 250 officers was not met and the number of officers that were granted PC were below 250, the question of evaluating officers on the basis of inter se competitive merit did not arise. This leads us to the second important aspect, which is, that in certain years such as 1999, 2000, 2001, 2004, 2005, 2006 and 2007, the ceiling of 250 was crossed for the male officers. This again belies the claim that benchmarking is crucial to maintain the integrity of competitive merit for grant of PC, as envisaged by the Policy Letter dated 15 January 1991. The data, in fact, shows that in several years, the ceiling was crossed, which is an indicator of the fact that it has not been applied as a rigid norm.89. Bearing this in mind, we note the submission of the ASG that for the present year, while implementing the judgment of this Court in Babita Puniya (supra) the ceiling of 250 vacancies was not applied as a one-time measure. This further demolishes the so-called rationale for benchmarking which has been offered by the ASG. For the above reason, there can be no manner of doubt whatsoever that the attempt to apply the benchmark of the lowest selected male officer is a ruse to deviate from the judgment of the Court and to bypass the legitimate claim of the WSSCOs. This benchmarking becomes particularly problematic, when coupled with the manner in which the reliance on ACRs was made.The WSSCOs claim that when their ACRs were being written, women who had been appointed on SSC were not entitled to PC and hence their ACRs were written in a casual manner. Now, the narration of the Army Orders and instructions adverted to earlier, demonstrates that the recommendation of the Commanding Officer and the Brigade Commander was necessary for evaluating an officer for the grant of PC. This was reiterated in MoDs Policy Letter dated 30 September 1983, AO 18 /1988 and MoDs Policy Letter dated 24 February 2012. TheMoD Policy Letter dated 24 Februaryfor instance, clearly specifies the requirement that in every ACR, where the officer has been recommended for PC by the reporting officer, he will be awarded 0 mark, and where he has not been recommended for PC, he will be awarded minus 2 marks. Now, it is an indisputable position that since WSSCOs were not entitled to the grant of PC, this part of the ACRs was invariably left blank.This indicates that as recently as in October 2020, the same problem of the ACRs of WSSCOs not being endorsed with the recommendation continued to persist. The ASG submitted that this structural problem was corrected by treating all the WSSCOs in the present batch of 615 officers to be recommended for the grant of PC. However, the issue is not confined merely to WSSCOs not being recommended for PC in their ACRs, but instead relates to the broader aspect which permeated the whole process of ACR writing for women.92. WSSCOs, unlike their male counterparts, were not eligible for being considered PC in the 5th / 10th year of their service. The grievance is that the reporting officers treated these WSSCOs differently while writing their ACRs as compared to their male counterparts who were eligible for the grant of PC. For instance, a document titled Ready Reckoner for Initiating/Reviewing/Endorsing the Confidential Reports, Unit Assessment Cards and Non Initiation Reports states that in the case of women special entry officers, a recommendation for extension is mandatory. Evidently WSSCOs were being treated differently for the reason that they were not eligible for the grant of PC. Following the decision of this Court in Babita Puniya (supra), a study group was constituted by the Integrated Headquarters of MoD (Army) on 2 March 2020 to carry out a Holistic Appraisal of Induction and Employment of Women Officers in Indian Army(Ref Letter No B/32313/Road Map/AG/PS-2(a) dated 2 March 2020). In this context, the communication dated 2 March 2020, has taken note of the fact that career progression for women officers in terms of their being assigned for Army courses and posting exposure was limited as a result of an option for PC not being available. Noting this anomaly, the document records:11. Career Progression. The in service career progression of WOs in terms of detailment for Army courses and posting exposures etc is presently limited keeping in view that option for PC and further career prog was NA. The same will now need to be aligned to male offrs so as to place them on equal footing to compete for Nos 5, No 3 and other SBs. The Study Gp would be required to delve upon this issue in details and may also review the list of male courses applicable for WOs.The above communication which has been issued by Lt. General SK Saini, Vice Chief of Army Staff states that it has the approval of the COAS. The observation in the communication in regard to the limited posting opportunities which were available to women officers is borne out by an earlier communication(Ref Letter No 04520/MS Policy dated 30 December 2003) dated 30 December 2003 of the Military Secretary Branch, Army Headquarters which records that the posting of women officers in soft field and peace stations is affecting the posting profile of their male counterparts. Consequently, specific directions were issued for the posting of women officers at appointments in peace regions as well as in formations in the field.93. The above factors must be coupled with the following circumstances, which must be borne in mind while considering the remedial steps necessary to rectify the discrimination which has been suffered by the WSSCOs:(i) The number of vacancies which were available for the grant of PCs in the batches for which the WSSCOs were being considered over the years has not been disclosed while processing the claims for the grant of PC. As noted earlier, in many cases, the upper ceiling of 250 officers to be granted PC was not met and in some years, this limit was breached. If, as suggested by the tabulated statement produced by the ASG in the written submissions, vacancies were available, the criteria of meeting the benchmarking of the lowest male selected officer is evidently irrational and arbitrary. This rationale, while touted as a manner of including competitive merit, was ignorant of the structural discrimination that was faced by women officers whose ACRs were casually graded, even when compared to the least meritorious male officer in their corresponding batch;(ii) In the case of male officers, the process of conducting the Special No. 5 Selection Board for considering the grant of PC is initiated by issuing an order declaring the date of the Board in advance so that the preceding three ACRs can be taken into consideration to assess the performance of the officer for the grant of PC. An officer has the option to seek remedial measures before the redressal mechanism to espouse any adverse entry in the ACR. This process has not been followed in the case of the WSSCOs before the Special No. 5 Selection Board was conducted. As an illustration for this, the petitioners have relied on a communication dated 17 January 2020 of the Integrated Headquarters of MoD (Army) which specifically states as follows:Initiation and Despatch of CRs14 The cut off CR for consideration by No 5 SB is 31 Oct 2019 vide AO 4512001/MS as amended CO/OC will ensure that CR for the year 2018-19 is forwarded in time in the correct format, vide AO 45/2001/MS as amended, and should reach MS Branch (respective CR library) within specified time Intermediate formation HQs should ensure that the CRs/Spl CR is initiated/endorsed for timely submission Also ensure Spl CR (if initiated) reaches concerned CR Library on or before 31 Mar 2020(iii) In the counter affidavit which has been filed by the Col. Military Secretary (Legal) it has been specifically admitted that:15…it is submitted that women officers were considered by No 5 SB in 5th and or 10th year for extension of service only. The criteria of medical fitness for grant of permanent commission and grant of Extension of service are entirely different. No SSC officer has ever been denied extension of service due to medical reasons. Therefore, the contention that since the petitioners were found medically fit at 5th or 10th year of service, as the case may be, when they were considered for extension of service, they should be now considered as fit for grant of permanent commission, are baseless.Women officers were considered by Special No. 5 Selection Board in their 5th and/or 10th year of service for extension of service only. In other words, Selection Board 5 was for extension and PC, but the women officers were granted only extensions because the option of PC was not available;(iv) The ratio between the marks assigned to computer evaluation and the value judgment marks assigned by the members of the Board was initially pegged at 80:20 as on 30 September 1983. This came to be altered on 24 February 2012 by MoDs Policy Letter to 95:5. In the written submissions tendered by the ASG it has been argued that :21. As per Annexure R-5 (page 122-132)MoD Policy Letter dated 30 September 1983, the quantified profile marks are to be given out of 80, while the marks for value-judgment are to be given out of 20. Juxtaposed, as per Annexure R-6 (page 133-144)D Policy Letter dated 24 February, the same are to be given in the ratio of 95:05 (Please see page 134). Depending upon their batch, the petitioners and other similarly placed women SSC officers were assessed either under Annexure R-5 or under Annexure R-6, as was done in the case of their male counterparts as well.The above submission indicates that while with effect from 30 September 1983, the value judgment marks were graded out of 20, it was subsequently brought down to 5 marks on 24 December 2012. The above extract indicates that the petitioners and other similarly situated WSSCOs were assessed either under the 30 September 1983 norm or as the case may be the 24 February 2012 norm, depending on their batch. The inherent lack of fairness is evident from the fact that the value judgment marks which were assessed for their male counterparts were by a different Special Board 5 in distinction to the Special Board which considered the case of the WSSCOs. There is a subjectivity inherent in value judgment marks which is the reason for bringing them down from 20 to 5. The issue is exacerbated in the case of the WSSCOs involved in the present case because the marks for value judgment have been assigned by a completely distinct Board;(v) It has been admitted in the counter-affidavit that the confidential reports, discipline and vigilance reports if any, and honours and awards as on the 5th or 10th years of service were considered in the case of the women officers. As a consequence of this, the qualifications, achievements and performance of women officers after the 5th or 10th year of service (as the case may be) have been ignored. At this stage, it is necessary to note that para 13(b) of AO 18/1988 specifically contemplates the last ACR before assessment for PC being taken into reckoning for grant of PC. Similarly MoDs Policy Letter dated 24 February 2012 specifically contemplates that in evaluating the overall performance of the officer, the average will be worked out for each year as well as for the entire period of officers services. Para 4(a) stipulates thus:(a) QAP: Overall performance of the officer is evaluated by taking the average of figurative assessment of all reporting officers other than FTO and HTO. Average will be worked out for each year as well as for the entire period of officers service. The latter QAP will be converted into a proportion of 75 marks.In spite of the above clear stipulations, it is now an admitted position that the distinguished record of the WSSCOs beyond the 5th/10thyear of service has been disregarded. The laurels achieved by them in the service of the nation after the 5th/10th year of service have been ignored;(vi) It has been submitted on affidavit that even women officers who have been awarded the prestigious commendation card from the COAS have been denied PC. As an example it has been stated that Lt. Col. Shikha Yadav (as well as several other women officers) have been denied PC though they have been awarded the COAS commendation. Lt. Col. Tashi Thapliyal was awarded the Vishisht Seva Mandal. Several women officers who have served in UN Missions overseas have been denied PC. There are women officers who have excelled in national sports events, exemplified by Major Pallavi Sharma who has a proven track record inter alia in shooting championships which has been ignored;(vii) In IA 12148 of 2020 in Writ Petition (C) 1172 of 2020 (Lt. Col. Sonia Anand v. Union of India), a detailed chart has been annexed indicating illustrations of women achievers who have been denied PC. At the cost of enlarging the size of this judgment, it becomes necessary to highlight the tabulated statement. The facts which have been set-forth before the Court have not been denied during the course of the submissions of the ASG :Illustrations: Women Officer Achievers who have been denied Permanent Commission.(viii) Of the above officers, it is necessary to emphasize in particular Lt. Col. Navneet Lobana (serial No XIV above). Lt. Col. Lobana is presently pursuing an M.Tech degree course for which she has been deputed by the Army from 30 July 2020. Following the decision not to grant a PC to her, the officer has been asked to refund the cost of the course which is approximately between Rs. 8.5 to 10 lacs. Applications for selection of officers for a Master of Technology in Structures at the College of Military Engineering were invited by the Training Branch, E-i-Cs Branch of Integrated Headquarters of MoD (Army), by a communication dated 28 November 2019. Based on a qualitative requirement criterion, the applications were shortlisted and a list of officers eligible for the interview was published on 20 April 2020. Lt. Col. Lobana was interviewed by a panel of DRDO Scientists at the College of Military Engineering, a Board of Officers headed by Brigadier rank officers and member officers from MS Branch 12 (Military Secretary Branch of Corps of Engineers) and Training Branch from E-in-Cs Branch. The officer was finally detailed on 10 July 2020 and has given an undertaking to continue to serve the Army for a minimum period of five years. Following her selection for the course, Lt. Col. Lobana moved from her posting at Patiala and reported to the College of Military Engineering, Pune and the course commenced on 30 July 2020. She is the only woman officer who has qualified in 2020 for an M.Tech in the Indian Army. She has been denied PC and has been asked to refund the cost of the course. The issue of medical fitness is not being considered here since it will be dealt with later.94. The above analysis leads to the conclusion that the process by which WSSCOs, were evaluated for the grant of PC was by a belated application of a general policy that did not redress the harms of gendered discrimination that were identified by this Court in Babita Puniya (supra). Additionally, its belated and formal application causes an effect of indirect discrimination. The petitioners submitted that Special No. 5 Selection Board appears to have been more a Board for rejection of candidates, than for selection. Some of the finest women officers who have served the Indian Army and brought distinction by their performance and achievements have been excluded by refusing to consider their achievements on the specious ground that these were after the 5th/10th year of service. They have been asked to benchmark with the last male counterparts from the corresponding batches. The benchmarking criterion plainly ignores that in terms of theMoD Policy Letter dated 15 January 1991a cut-off of 60 per cent was prescribed and a cap of 250 officers who would be granted PC annually was laid down. Competitive merit was required to be assessed only where the number of eligible officers exceeds the ceiling of 250. As the figures which have been disclosed by the Union of India indicate, for the period from 1994-2010, there were years when the ceiling of 250 officers had not been reached. Then there are other years where the total number of male officers granted PC was well in excess of 250. For years during which the ceiling of 250 had not been reached, there is absolutely no justification to exclude the WSSCOs who had fulfilled the cut-off grade on the basis of the benchmarking criteria. Moreover, it is evident that the ceiling of 250 was not regarded as an absolute or rigid criterion as already indicated in the earlier part of this judgment.95. The evaluation process which has been followed in the case of the WSSCOs has clearly ignored that the writing of their ACRs was fundamentally influenced by the circumstance that at the relevant time an option of PC was not available for women. Even as late as October 2020, the authorities have emphasized the need to duly fill in a recommendation on whether or not WSSCOs should be granted PC. The manner of allocating 20 marks or 5 marks as the case may be, in the subjective assessment has been found to be flawed since male counterparts of the WSSCOs were assessed by an entirely distinct Special No. 5 Selection Board. To make a comparison in regard to the award of subjective marks ranging between 5 and 20 by different sets of boards would be completely unfair and arbitrary. It does not fulfill the avowed purpose of benchmarking which was to compare like with like.We do not find merit in the submissions of the ASG. While it may be the case that in some instances women officers were given the opportunity to undertake additional courses to enhance their performance, we must also be alive to the other end of the spectrum which is that, at no point during their service were women officers incentivized to take such performance enhancement courses as they were never eligible for grant of PC then. It may have been the case that for extension of their service such performance enhancing measures were not critical. Even if we take the argument of the ASG at its highest and concede that these additional courses would not make any difference since the marks were given on an average, it is still possible that these courses could have impacted the value judgment or the subjective criterion of 20 or 5 marks, as the case may be, in their ACRs. The impact caused by the evaluation of ACRs, particularly on the marks for performance of courses is a stark representation of the systemic discrimination that pervaded the structures of the Army. A formalistic application of pre-existing policies while granting PC is a continuation of these systemic discriminatory practices. WSSCOs were continued in service with a clear message that their advancement would never be equal to their male counterparts. Their ACR evaluations made no difference to their careers, until PC was granted to them by a court mandate in Babita Puniya (supra). Accordingly, some womens failure to opt for courses in the past that would strengthen their chances and reflect positively on their ACRs is not a vacuous exercise of choice but a consequence of a discriminatory incentive structure.97. Finally, the above analysis indicates that there has been a flawed attempt to peg the achievements of the WSSCOs at the 5th/10th years of service thereby ignoring the mandate that the last ACR ought to be considered and the quantitative performance for the entire record of service must be assessed. Considering the ACRs as on the 5th or 10th year of service for grant of PC would have been appropriate, if the WSCCOs were being considered for PC at that point of time. However, the delayed implementation of the grant of PC to WSSCOs by the Army and considering of ACRs only till the 5th/10th year of service has led to a situation where, in effect, the Army has obliviated the years of service, hard work and honours received by WSSCOs beyond their 5th/10th year of service and relegated them back to a position they held, in some cases, more than 10 years ago. The lack of consideration given to the recent performance of WSSCOs for grant of PC is a disservice not just to these officers who have served the nation, but also to the Indian Army, which on one hand salutes these officers by awarding them honours and decorations, and on the other hand, fails to assess the true value of these honours when it matters the most - at the time of standing for the cause of the WSSCOs to realise their rights under the Constitution and be treated on an equal footing as male officers who are granted PC.98. On the basis of our analysis we have come to the conclusion that while implementing the judgment of this Court in Babita Puniya (supra), the Army authorities have attempted to demonstrate the application of a facially neutral standard as between WSSCOs and their male counterparts. The entire approach is indicated in the following averment in the counter affidavit filed by the Military Secretary:That the Petitioners herein on one hand seek to be treated at par with the male counterparts, however, on the other hand, seek special and unjustified treatment in the eligibility conditions.Subsequently, in the course of the written submission, an apology has been tendered in the following terms:11. At this stage, an apology would be in order as regards the equivocality of the last sentence in para 14 of the C/A (pages 21 and 22), which though made in good faith to emphasize the point that the implementation is being done, treating women officers at par with the men officers, ended up, albeit inadvertently, carrying an impression as if the same is being done to complete the rituals. It is submitted that the UoI is immensely proud of the contribution of women officers to the cause of Indian Army. It is submitted that it is not by any pre-planning that a particular number of women SSC officers do not find themselves approved for PC.99. The fact that there was no pre-planning to exclude women from the grant of PC is irrelevant under an indirect discrimination analysis. As we have noted previously, under this analysis, the Court has to look at the effect of the concerned criteria, not at the intent underlying its adoption. In light of the fact that the pattern of evaluation will in effect lead to women being excluded from the grant of PC on grounds beyond their control, it is indirectly discriminatory against WSSCOs.100. We must recognize here that the structures of our society have been created by males and for males. As a result, certain structures that may seem to be the norm and may appear to be harmless, are a reflection of the insidious patriarchal system. At the time of Independence, our Constitution sought to achieve a transformation in our society by envisaging equal opportunity in public employment and gender equality. Since then, we have continuously endeavored to achieve the guarantee of equality enshrined in our Constitution. A facially equal application of laws to unequal parties is a farce, when the law is structured to cater to a male standpoint.(Catharine A. MacKinnon, TOWARDS A FEMINIST THEORY OF STATE (Harvard University Press 1989) at p.220.) Presently, adjustments, both in thought and letter, are necessary to rebuild the structures of an equal society. These adjustments and amendments however, are not concessions being granted to a set of persons, but instead are the wrongs being remedied to obliterate years of suppression of opportunities which should have been granted to women. It is not enough to proudly state that women officers are allowed to serve the nation in the Armed Forces, when the true picture of their service conditions tells a different story. A superficial sense of equality is not in the true spirit of the Constitution and attempts to make equality only symbolic.101. Accordingly, the respondents must remove the requirement of benchmarking the WSSCOs with the last male officer who had received PC in their corresponding batches and all WSSCOs meeting the 60% cut-off must be granted PC. Additionally, the calculation of the cut-off at 60%, which must by army orders and instructions be reviewed every 2 years, must be re-assessed to determine if the casual completion of their ACRs is disproportionately impacting the WSSCOs ability to qualify for PC even at that threshold. In light of the systemic discrimination that women have faced in the Army over a period of time, to call for the adoption of a pattern of evaluation that accounts and compensates for this harsh reality is not to ask for special and unjustified treatment. Rather, it is the only pathway for the attainment of substantive equality. To adopt a symmetrical concept of equality, is to empty the antidiscrimination guarantee under Article 15, of all meaning.102. The medical criteria for assessing officers for the grant of PC have been specified in Army instructions and Army Orders to which a detailed reference has been made in the earlier part of this judgment. While dealing with the application of the criteria to the WSSCOs in pursuance of the judgment in Babita Puniya (supra), it would be necessary to revisit some salient features:(i) SAI/3/S/70 specifically provided that in order to be eligible to apply for PC, an SSC officer must be in medical category A-1. Those placed in medical categories A-2, B-1 and B-2 as a result of casualties suffered in action during operations could also be considered on the merits of each case by the government;(ii) Subsequently, when the SHAPE criteria was introduced, para 2(b) was re- constructed in 1972 by AI 102/1972 to stipulate that the medical category should not be lower than grade-II under any of the SHAPE factors, excluding the S factor in which the grade should not be lower than 1. In exceptional cases, it was stipulated that a grading of 2 in both H and E together may be acceptable. A low medical categorization could not be due to medical reasons, but only as a result of casualties suffered in action during operations or due to injury or other disability sustained during duty;(iii) Subsequently, AO 110/1981 contained a stipulation for medical boards. Para 13 indicated that for officers who are placed in the TLMC, medical board proceedings recorded on form AFMSF-2 are not required until their medical category stabilizes. Upon the stabilization of the medical category, certain procedures had to be followed;(iv) Army Instruction 75-81 dated 4 November 1978 provided for the terms and conditions of service for officers granted SSC in the Army Medical Corps. While laying down an upper age limit of 45 years, para 3(d) also stipulated that applicants must be in medical category SHAPE-1;(v) AO 18/1988 stipulates in para 21, that the medical category of an officer seeking PC should not be lower than grade 2 under any of the SHAPE factors, excluding the S factor in which the grade should not be lower than 1. In exceptional cases, grading of 2 in both H and E together acceptable. Moreover low medical categorization should have been caused as a result of casualties suffered in action during operations or due to injuries or other disabilities sustain during duty;(vi) Army Instruction 14/1999 dated 1 August 1999 amended SAI 3/S/70 by stipulating thatTheir medical category should not be lower than S1 or H2 or A3 or P2 or E2 or H2E2 or H2A3 or H2P2 or E2A3 or E2P2. However grant of Permanent Commission to low medical category Short Service Commissioned Officers will be subject to rendition of the requisite certificate in terms of AO 20/75(vii) AO 9/2011 specifically defines the meaning of the SHAPE criteria and makes detailed provisions in regard to modalities for evaluation of medical fitness. We have already adverted to the meaning and content of the SHAPE criteria in the earlier part of this judgment.104. Now the singular aspect of the medical requirements that must be noticed at the outset is that there is a broad consistency of policy on the norms, which have to be fulfilled in order for an officer to qualify for the grant of PC. Another important facet which needs to be emphasized is that SHAPE-1 has a specific meaning which is assigned to it under AO 9/2011. S donates the physiological features including cognitive function abnormalities, H stands for hearing, A for appendages, P for physical capacity and E for eye-sight. The requirement of being in grade-1 in each of the five factors of SHAPE is subject to relaxation in terms of exceptions which are clearly spelt out. The policy provides a concession to such candidates who may not have suffered injury on the line of duty as a result of which their medical categorization has been lowered. But this should not be lower than S1 or H2 or A3 or P2 or E2 or A2E2 or H2A3 or H2P2 or E2A3 or E2P2. The exception which has been provided is available if an injury (as distinct from a disease) has been suffered while on the line of duty, irrespective of whether it has been incurred during peace time or in field operations. Officers in the PLMC who fulfill the terms of the exception are granted PC, if they are otherwise found fit on merits. The requirement of fulfilling the SHAPE criteria as explained earlier is a pre-requisite even in such arms or services where both men and women join up to the age of 45 years, as in the case of the Army Medical Corps. The Army follows and adopts the TLMC norm which allows an officer placed in that category to return to SHAPE 1 within the stabilization period of one year. By this, an opportunity is granted to the officer to return to the SHAPE-1 category within one year.105. Physical fitness is crucial for securing a place in the Army. While exercising judicial review, the Court must be circumspect on dealing with policies prescribed for the Armed Forces personnel in attaining norms associated with physical and mental fitness. In the present case, as disclosed before this Court, out of the initial 87 petitioners contesting the proceedings in 7 writ petitions, 55 are SHAPE 1 going up to the age of 52 years, 23 have been assigned to PMLC, while 9 are placed in TLMC. The material which has been placed on record in the form of AO 9/2011 indicates a classification range of minimum and maximum permissible parameters for each of the five factors comprised within the SHAPE norm.This tabulation indicates a significant proportion of WSSCOs, irrespective of their belated consideration, are able to presently meet the prescribed criteria. With respect to the medical criteria prescribed by the Army, we are cognizant that there can be no judicial review of the standards adopted by the Army, unless they are manifestly arbitrary and bear no rational nexus to the objects of the organization. The SHAPE criterion is per se not arbitrary.106. Having come to the conclusion that the medical criterion is per se not arbitrary, it is the Courts responsibility to examine whether it has been equally applied. We cannot shy away from the fact, that these 615 WSSCOs are being subjected to a rigorous medical standard at an advanced stage of their careers, merely on account of the fact that the Army did not consider them for granting them PC, unlike their male counterparts. By the judgment of the Delhi High Court dated 12 March 2010, specific directions were issued for considering the women SSC officers for the grant of PC. This was a decade ago. During the pendency of the appeal from the judgment of the Delhi High Court before this Court, there was no stay on the application of the judgment of the High Court. This was specifically clarified by the order of this Court on 2 September 2011. The intent of the clarification was that implementation of the directions of the High court must proceed. The WSSCOs have submitted with justification that had they been considered for the grant of PC then, as the respondents were directed to do by the decision of the Delhi High Court, they would have met the norms of eligibility in terms of medical parameters. Their male counterparts who were considered for and granted PC at that time are not required to maintain SHAPE 1 fitness to be continued in service. Serious hardship has been caused by the Army not considering the cases of these WSSCOs for the grant of PC at the relevant time, despite the express clarification by this Court. Though the contempt proceedings against the respondents were stayed, this did not obviate the obligation to comply with the mandate of the judgment of the Delhi High Court especially after a specific clarification that no stay had been granted. Consideration for PC was not just a legitimate expectation on the part of the WSSCOs but a right which had accrued in their favour after the directions of the High Court, which were issued about a decade ago. The WSSCOs who have been excluded on medical grounds in November 2020 have a legitimate grievance that whether they fulfilled the SHAPE 1 criterion has to be determined from their medical status on the date when they were entitled to be considered, following the decision of the Delhi High Court. Such of them who fulfilled the criterion at the material time are entitled to PC and can continue in service so long as they continue to meet the medical standards prescribed for continuance in the Army. In other words, there is no challenge to the criteria for medical fitness prescribed. These WSSCOs do not seek a special dispensation or exemption for themselves, as women. The essence of the dispute is when the SHAPE 1 criterion has to be applied in the peculiar circumstances which have been noted above.107. Within the SHAPE criterion, para 31 of AO 9/2011 provides for functional capacities. This ranges from category 1A (fit for all duties anywhere) and category 1B (fit for all duties anywhere under medical observation without employability restrictions); category 2 (fit for all duties but with limitations involving severe physical and mental stress); category 3 (except S factor fit for routine or sedentary duties but limitations of employment duties both job wise and terrain wise); category 4 (temporarily unfit for duties on account of hospitality/sick leave); and category 5 (permanently unfit for military duties).We need not dwell on that aspect since it is an admitted position that SHAPE-1 is not a requirement for continuation in service. The ASG had sought to bolster his submission of SHAPE-1 as a threshold requirement for PC, by relying on the recruitment process for the Army Medical Corps, where even a 45 year old person seeking recruitment, must comply with SHAPE-1 medical criteria. However, a critical assumption that undergirds the grant of PC is the approximate age of persons who would be under consideration. The WSSCOs in this case are not fresh recruits who are due to be considered in their 5th or 10th year of service, nor are they seeking exceptional favors on account of their sex.109. On one hand, the Army authorities are insistent on relying on the medical criteria as a filtering mechanism for grant of PC to WSSCOs. On the other hand, we have WSSCOs who have legally fought for their rights and are additionally suffering due to the untimely implementation of their hard-won rights. The Army authorities have stated that the medical criterion has been sufficiently adjusted to take into account age related factors. However, the Army authorities are insistent to apply the medical criteria as of today, while simultaneously attempting to freeze the ACRs of the WSSCOs at the 5th or 10th year of service. Indirect discrimination coupled with an exclusionary approach inheres in this application. An enhancement in the qualifications of WSSCOs from their 5th/10th year of service till today, as would be reflected in their recent ACRs, would demonstrate them as an experienced pool of human resource for the Indian Army. However, a reduction of medical fitness below the SHAPE 1 norm at present as a consequence of age or the tribulations of service is not a necessary detriment to the Army when similarly aged male officers with PC (invariably granted in the 5th or 10th year of their service) no longer have to meet these rigorous medical standards for continuing in service. This is further bolstered by the fact that the WSSCOs who are no longer in SHAPE-1, have been meaningfully continuing in service, even after 14 years of service, till the declaration of results of the PC in November 2020.110. We also must express our anguish at the respondents failure to implement the judgment rendered by the Delhi High Court in 2010, whose operation was specifically not stayed by this Court in 2011. The conundrum on the applicability of the medical criterion to WSSCOs who are 40-50 years old, has arisen only because of the Army not having implemented its decision in time, despite the course correction prescribed by the Delhi High Court in 2010. The WSSCOs, a few of whom are petitioners before us today, have persevered for over a decade to gain the same dignity of an equal opportunity at PC. The fact that only around 35 women who are otherwise fit for PC, and 31 women who do not qualify in addition to not meeting the medical criteria, is irrelevant in determining whether each of these women is entitled to equality of opportunity in matters of public employment under Article 16(1) and (2). As observed by a 9 judge bench of this Court in Justice KS Puttaswamy v. Union of India,((2017) 10 SCC 1 ) a de minimis rationale is not a permissible exception to invasion of fundamental rights. The Court, speaking through one of us (Chandrachud, J.) had held that the de minimis hypothesis is misplaced because the invasion of a fundamental right is not rendered tolerable when a few, as opposed to a large number of persons, are subjected to hostile treatment.( Id. at para 128) Similarly, the percentage of women who have suffered as a consequence of the belated application of rigorous medical criteria is irrelevant to the determination of whether it is a violation of Articles 14, 15 and 16 of the Constitution.111. In rendering the decision in Babita Puniya (supra), this Court was mindful of the insidious impact on the generations of women who must have given up on their dreams to serve in the Armed Forces owing to the gendered roadblock on their aspirations, and of the women who must have chosen to opt out of availing an extension to their SSC terms on similar grounds. We must not forget that those women officers who have remained in service are those with the tenacity to hold on and to meet the exacting standards of performance of which the Indian Army has made her citizens proud. It is also important for us to bear in mind that a career in the Army comes with a serious set of trials and tribulations of a transferable service with postings in difficult terrains, even in times of peace. This is rendered infinitely more difficult when society relegates functions of domestic labour, care-giving and childcare exclusively on the shoulders of women. The WSSCOs before us are not just women who have dedicated their lives to the service of the Army, but are women who have persevered through difficult conditions as they trudged along a lengthy litigation to avail the simplest of equality with their male counterparts. They do not come to the Court seeking charity or favour. They implore us for a restoration of their dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly neutral parameters.112. We are unable to accept the ASGs submission on the medical criteria being modulated to account for advancement of age. The timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender. The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service.113. Another aspect of the case relates to the interpretation of the direction in Babita Puniya (supra) mandating WSSCOs who have completed 14 years of service as on the date of the judgment to be considered for PC. In the event of their non-approval or non-option, these officers are to be continued in service for 20 years, with benefits of pension. In Babita Puniya (supra), the directions issued by this Court, were while accepting the policy decision of the Union Government. The policy decision of the Union Government for the grant of PCs to WSSCOs in all the ten streams where women were granted SSC in the Indian Army was accepted, subject to several conditions which were spelt out in clauses (a) to (g) of direction (1) in paragraph 69 of the judgment. The directions (a) to (c) are again reproduced below as a convenient point of reference:(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service.(b) The option shall be granted to all women presently in service as SSC officers.(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service.(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC.Directions (e), (f) and (g) are not material at this stage. Direction (d) refers to existing SSC officers with more than 14 years of service. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service.114. The petitioners in Lt. Col. Reena Gairola v. Union of India(Writ Petition (Civil) No. 34 of 2021) and in Major Nilam Gorwade v. Union of India(Writ Petition (Civil) No. 1223 of 2020) belong to the group of women officers recruited under the WSES(O)- 27 to 31 and SSCW(T&NT) 1 to 3. These petitioners were commissioned on or after March 2006 and had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra). Under the directions in Babita Puniya (supra), in case they do not opt for PC or opt for PC and are not granted PC, they will be released at the end of their 14 years of contractual service. The petitioners in these batches would neither be entitled to pension as they would have only completed 14 years of service at the end of their contract, nor would they be given the one time relief granted in Babita Puniya (supra) of entitlement to continue in service for 20 years.It is pertinent to mention that these petitioners were not a party before this Court in Babita Puniya (supra) and consequently could not make out a case for their entitlement to a similar relief for extension till they attain pensionable service, in light of the respondents failing to consider them in time, despite the petitioners being beneficiaries of the judgment of the Delhi High Court.Once relief was granted to them by the Delhi High Court and the interim order of the Supreme Court, these WSSCOs took a conscious decision based on these reliefs to continue in service, in anticipation that sooner or later, they would be granted PC. Had they been rejected for PC upon the judgment of the Delhi High Court in 2010, that is over a decade ago, it would have been easier for them to make a career shift and seek employment elsewhere.117. This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya (supra), was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The one-time benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. 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pensionable service. (d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC. (emphasis supplied) Directions (e), (f) and (g) are not material at this stage. Direction (d) refers to existing SSC officers with more than 14 years of service. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service. 114. The petitioners in Lt. Col. Reena Gairola v. Union of India(Writ Petition (Civil) No. 34 of 2021) and in Major Nilam Gorwade v. Union of India(Writ Petition (Civil) No. 1223 of 2020) belong to the group of women officers recruited under the WSES(O)- 27 to 31 and SSCW(T&NT) 1 to 3. These petitioners were commissioned on or after March 2006 and had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra). Under the directions in Babita Puniya (supra), in case they do not opt for PC or opt for PC and are not granted PC, they will be released at the end of their 14 years of contractual service. The petitioners in these batches would neither be entitled to pension as they would have only completed 14 years of service at the end of their contract, nor would they be given the one time relief granted in Babita Puniya (supra) of entitlement to continue in service for 20 years. 115. The petitioners in the abovementioned writ petitions have argued that within their batches (WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3), 161 women have been granted PC, out of the 284 serving officers. 66 officers who were not approved for PC (allegedly, inter alia, as a consequence of the medical criteria and ACR assessment) and 9 officers who did not opt for PC, have to retire at the end of their contractual term of 14 years, with no pension or benefits. It is pertinent to mention that these petitioners were not a party before this Court in Babita Puniya (supra) and consequently could not make out a case for their entitlement to a similar relief for extension till they attain pensionable service, in light of the respondents failing to consider them in time, despite the petitioners being beneficiaries of the judgment of the Delhi High Court. 116. The case of the petitioners is also that at the time of rendering of the judgment of the Delhi High Court in 2010, these WSSCOs had completed a maximum of 4 years in service (or less). Once relief was granted to them by the Delhi High Court and the interim order of the Supreme Court, these WSSCOs took a conscious decision based on these reliefs to continue in service, in anticipation that sooner or later, they would be granted PC. Had they been rejected for PC upon the judgment of the Delhi High Court in 2010, that is over a decade ago, it would have been easier for them to make a career shift and seek employment elsewhere. 117. This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya (supra), was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The one-time benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. The Courts objective in providing for such a cut- off was to compensate for the impact of the discrimination which had denied them timely opportunities and to account for the significant risk and commitment they demonstrated by their continuation in service. 118. It has been brought to our attention that the women officers in the batches of WSES(O) - 27 to 31 and SSCW(T&NT) 1 to 3 face a similar predicament as they are being considered for PC beyond their 10th year in service (in the best case). Similar to the women in the older cadres who were denied opportunities, career progressions and assurances owing to the respondents failure at the relevant time to ensure gender equality in the forces; the women in the batches who were between 10-14 years of their service were meted the same insecurity. The WSES scheme has been discontinued and the WSES(O) 31, commissioned in 2008, is the last batch to have gained entry in the scheme, rendering it a dying cadre. We have deployed the expression dying cadre not in a pejorative sense. The expression has a specific meaning in service jurisprudence to denote a dwindling class of officers in service. The officers in the consequent batches of SSCW (T&NT) 1 to 3, although part of the new scheme that replaced WSES, will be the only batches who will face an adverse impact of the respondents failure to implement the Delhi High Court judgement before the 10th year of their service. In exercise of the constitutional power entrusted to this court under Article 142 to bring about substantial justice, we are compelled to extend the benefit of directions (c) and (d) in Babita Puniya (supra) to the officers of the abovementioned batches, as a one-time benefit. This one-time extension, would bring parity inter se between officers who were discriminated by their non-timely consideration by the respondents. H Conclusion and directions
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dignity, when even strongly worded directions by the Court in Babita Puniya (supra) have not trickled down into a basic assessment of not subjecting unequals to supposedly neutral parameters.112. We are unable to accept the ASGs submission on the medical criteria being modulated to account for advancement of age. The timing of the administration of rigorous standards is a relevant consideration for determining their discriminatory impact, and not just an isolated reading of the standards which account for differences arising out of gender. The WSSCOs have been subject to indirect discrimination when some are being considered for PC, in their 20th year of service. A retrospective application of the supposedly uniform standards for grant of PC must be modulated to compensate for the harm that has arisen over their belated application. In the spirit of true equality with their male counterparts in the corresponding batches, the WSSCOs must be considered medically fit for grant of PC by reliance on their medical fitness, as recorded in the 5th or 10th year of their service.113. Another aspect of the case relates to the interpretation of the direction in Babita Puniya (supra) mandating WSSCOs who have completed 14 years of service as on the date of the judgment to be considered for PC. In the event of their non-approval or non-option, these officers are to be continued in service for 20 years, with benefits of pension. In Babita Puniya (supra), the directions issued by this Court, were while accepting the policy decision of the Union Government. The policy decision of the Union Government for the grant of PCs to WSSCOs in all the ten streams where women were granted SSC in the Indian Army was accepted, subject to several conditions which were spelt out in clauses (a) to (g) of direction (1) in paragraph 69 of the judgment. The directions (a) to (c) are again reproduced below as a convenient point of reference:(a) All serving women officers on SSC shall be considered for the grant of PCs irrespective of any of them having crossed fourteen years or, as the case may be, twenty years of service.(b) The option shall be granted to all women presently in service as SSC officers.(c) Women officers on SSC with more than fourteen years of service who do not opt for being considered for the grant of the PCs will be entitled to continue in service until they attain twenty years of pensionable service.(d) As a one-time measure, the benefit of continuing in service until the attainment of pensionable service shall also apply to all the existing SSC officers with more than fourteen years of service who are not appointed on PC.Directions (e), (f) and (g) are not material at this stage. Direction (d) refers to existing SSC officers with more than 14 years of service. This expression is clearly intended to encompass those WSSCOs who had completed 14 years of service on the date of the judgment. It is important to note that these officers were also granted the benefit of continuing in service until the attainment of pensionable service.114. The petitioners in Lt. Col. Reena Gairola v. Union of India(Writ Petition (Civil) No. 34 of 2021) and in Major Nilam Gorwade v. Union of India(Writ Petition (Civil) No. 1223 of 2020) belong to the group of women officers recruited under the WSES(O)- 27 to 31 and SSCW(T&NT) 1 to 3. These petitioners were commissioned on or after March 2006 and had not completed 14 years of service as on the date of the judgment in Babita Puniya (supra). Under the directions in Babita Puniya (supra), in case they do not opt for PC or opt for PC and are not granted PC, they will be released at the end of their 14 years of contractual service. The petitioners in these batches would neither be entitled to pension as they would have only completed 14 years of service at the end of their contract, nor would they be given the one time relief granted in Babita Puniya (supra) of entitlement to continue in service for 20 years.It is pertinent to mention that these petitioners were not a party before this Court in Babita Puniya (supra) and consequently could not make out a case for their entitlement to a similar relief for extension till they attain pensionable service, in light of the respondents failing to consider them in time, despite the petitioners being beneficiaries of the judgment of the Delhi High Court.Once relief was granted to them by the Delhi High Court and the interim order of the Supreme Court, these WSSCOs took a conscious decision based on these reliefs to continue in service, in anticipation that sooner or later, they would be granted PC. Had they been rejected for PC upon the judgment of the Delhi High Court in 2010, that is over a decade ago, it would have been easier for them to make a career shift and seek employment elsewhere.117. This Court, as a consequence of the constraint of information being provided to it by the parties arraigned before it in Babita Puniya (supra), was not alive to the full extent of the cadres who were denied a timely opportunity for PC in their 5th or 10th year of service. Direction (c) and (d), as a one-time measure, attempted to correct the gross injustice that was meted out to women officers who had completed over 14 years in service, and were being considered for PC at a belated stage. The one-time benefit of continuation in service until their 20th year was provided as a corrective exercise for women who have devoted their careers to the Army, in spite of the dignity of PC being elusive to them, merely as a consequence of their gender. The Courts objective in providing for such a cut- off was to compensate for the impact of the discrimination which had denied them timely opportunities and to account for the significant risk and commitment they demonstrated by their continuation in service.
|
Commissioner of Customs, Mumbai Vs. M/s. Aban Loyd Chiles Offshore Ltd. & Others | Bombay High Court in Pride Foramer (supra) was upheld. In this case the rig was operational and used outside the territorial waters limits, but in the designated areas of the continental self and exclusive economic zones, which have been declared by the notification to be a part of the territory of India for limited purpose. The natural consequence of the said notification was to extend the Customs Act and the Customs Tariff Act to the designated areas outside the territorial waters to introduce the custom regime in such areas resulting in levy and collection of custom duty. The issue raised in the said case related to consumption of goods or stores imported by the drilling contractor and supplied to the rig. The stores used for consumption onboard the oil rigs, when stationed in the notified or designated areas, which were deemed to be territorial waters, was chargeable and customs duty was payable. 28. In the case at hand, neither the adjudication order nor the order passed by the tribunal has elucidated or held that the rig in question was in operation in the territorial waters or the designated/deemed territorial waters pursuant to the notification. The issue of chargeability and liability to pay customs duty has been on different precepts and grounds. 29. The adjudication order refers to and is predicated on the rig being brought to the port for repairs in February, 1996 for which permission was sought from the Commissioner of Customs vide letter dated 12th February, 1996 under the provisions of notification No. 153/94 Cus. The rig subsequently moved out of the port after repairs. The rig was brought for the second time to the Mumbai port for repair on 9th November, 1996 and had remained there till 2nd December, 1996. The rig thereafter was taken out and removed from the territorial waters of India as is evincible from the adjudication order. The rig was for the third time brought to the outer anchorage in Mumbai/Mumbai port on 9th December, 1998 and removed from the customs area. On this occasion, for the first time, the authorities felt that the rig had been imported into India when the rig was brought within the territorial waters for repairs. The adjudication order does not record that the rig was in operation within the territorial waters of India. On the other hand, the adjudication order does not spell out that the rig did not operate outside the territorial waters of India. The contention raised by the owner in this regard was neither specifically rejected not a different finding was recorded. The finding was that the rig when it is repaired in India, it is imported into India for home consumption. The adjudication order holds that the repairs undertaken would complete the act of import, for the requirement of home consumption was satisfied. The said finding, in our opinion, is unacceptable and faulty. Mere repair of a vessel is not putting the vessel to use in India and would not result in home consumption as the vessel was not utilized within the territory of India. Repairs are carried on the vessel and not to utilize the vessel. It would not amount to utilization or operation of the vessel/rig in India. Thus, it cannot be said that the vessel, i.e., the rig, was imported into India when it had anchored twice in 1996 and once in 1998 for the purpose of repair, for the element of home consumption is missing even when the vessel, i.e., the rig, had entered the territorial waters. Thus, it would be incorrect to hold that mere repair of the vessel in 1996 or in 1998 would constitute taxable import. 30. The authorities have laid emphasis on the factum that the rig was purchased for being used in the oil field of ONGC and for this purpose the owner had made an application and permission/licence for import was granted by the Ministry of Industry. The rig was purchased from foreign exchange released by the Government on the basis of the import licence for the rig. If the rig was not to be used in India, foreign exchange would not have been released and import licence would not have been granted. This argument on behalf of the department does not further the stand. It cannot be regarded as conclusive. Release of foreign exchange, approval and licence, etc. are prior to the import. Import may not take place in spite of this aforesaid clearances/licence and release of foreign exchange. There may have been violation of another enactment/provision as the rig was not imported, albeit for deciding the question whether the rig was imported into India, the requirement of home consumption has to be satisfied. Then alone, the `good, i.e., the vessel/rig would be taxable and customs duty payable under the Act. Pertinently, the adjudication order does not hold that the import had taken place in 1987 when the rig first put into operation in the high seas. This was not treated as the date of import or home consumption. The import as per the authorities had taken place when the rig was brought for repairs. The evaluation of the rig has been done on the basis of the last visit of the rig for repair in 1998. 31. While we are disposed to accept that there was no import, we would not on the said finding hold that the owner had not violated the provisions of the Act, which are much broader and wider in scope. The Act regulates and mandates compliance by the foreign going vessels when they enter the territorial waters. Provisions of the Act are required to be met and complied with even when no goods are to be unloaded for import into India or the vessel is not a `good meant for home consumption. Thus, violations recorded by the tribunal cannot be found fault with. 32. Thus analysed, we are of the indubitable opinion, that the decision rendered by the tribunal deserves our concurrence and we so do. | 0[ds]Goods for the purpose of the Act includes vessels, aircrafts and vehicles as defined in sub-section (22) to Section 2, yet the distinction has to be recognized between a vessel or an aircraft as a mere good and when the vessel or an aircraft comes to India as a conveyance carrying imported goods. When a vessel or an aircraft is imported into India as a good, customs duty is payable thereon. However, when a vessel is used as a conveyance of an imported good, the position would be different.In this context, reference to Section 43 of the Act would be profitable.14. As per the said provision, Sections 30, 41 and 42 shall not apply to a vehicle, which carries no goods other than the luggage of the occupants. The term `vehicle as defined in sub-section (42) to Section 2 means conveyance of any type used on land. As a logical corollary, it would not include a ship or vessel. Sub-section (2) to Section 43 states that the Central Government may by notification in the Official Gazette exempt the different classes of conveyances from all or any other provisions of the Act. However, we do find some difficulty as taxation or taxability of the `foreign going vessels when they enter Indian territorial waters is not directly addressed in the fasciculus of the Sections from 29 to 43 of the Act. These provisions do make a distinction between goods imported to be unloaded at the port for India and those which are not to be unloaded and in transit.15. At this stage, we would like to first adumbrate on the definition of the term foreign going vessel or aircraft as defined in sub-section (21) of Section 216. The aforesaid expansive definition by way of deeming fiction includes any vessel engaged in fishing or any other operations outside the territorial waters of India. By legal fiction, a vessel engaged in fishing outside the territorial waters of India or any other operations outside the territorial waters of India is to be treated for the purpose of the said Act as a foreign going vessel. When the said conditions are satisfied, whether the said vessel for the time being is engaged in carriage of goods or passengers between a port in India and a port outside India, is not of any relevance. Consequently, a rig which is engaged in operations outside the territorial waters of India would be a foreign going vessel. However, a rig carrying on operations within the territorial waters of India would not be a foreign going vessel. Be it clarified, it is not necessary to dilate and examine the issue whether rigs are vessels, for it is an accepted and admitted position settled beyond doubt.18. The expression import is a wide expression, which would include cognate expressions and means bringing into India from a place outside India. The word India for the purpose of the Act includes the land mass as well as territorial waters. The term dutiable goods are goods which are chargeable to duty and on which duty has not been paid. Once duty has been paid, the goods cease to be dutiable goods. Section 12 of the Act begins with the words Except as otherwise provided in this Act or any other law for the time being in force. Thus, it gives primacy to any other law being in force, and records that the said provision would apply when otherwise not provided in the said Act. Therefore, when any other provision of the Act or other law for the time being provides differently, that would not attract customs duty under Section 12. Duty of custom, subject to the above, is levied at the rates specified under the Customs Tariff Act, 1975 or any other law for the time being in force on the goods imported into or exported from India.23. As is noticeable, in the said case, the vessel was in operation and primarily used within the territorial waters of India and was not used as an ocean going vessel. As a sequitur, it was held that the vessel were goods imported into India for home consumption for they were primarily to be used as a vessel in India, i.e., in the territorial waters. However, the Court was conscious and expressly guarded the said proposition clarifying that it was not pronouncing any dictum as to what would be the position if these goods (the vessel) were not intended to be primarily used in India or used occasionally for short period in India and whether in such situation, the vessel should be treated as a good for home consumption. As the vessel in the said case was brought in India and was primarily used as a transshipper and occasionally in the open seas, it was held to be a good imported for home consumption24. This aforesaid authority, in our opinion, answers the contention raised by the owner that rig in question was not meant for home consumption as the rig never entered the land mass. As long as the rig was used for operations within the territorial waters of India, the rig would meet the requirement and satisfy the condition that it was an imported good meant for home consumption. There would be no doubt on the said legal position in view of the subsequent pronouncement in V.M. Salgaoncar (supra), wherein dwelling on the question of home consumption it was held that the expression `consumption does not involve complete using up of the commodity and would include putting the commodity to use to any type of utility within the territory of India. Even when this condition is satisfied, it would amount to home consumption. The question raised in V.M. Salgaoncar (supra) was whether the vessels used as transshippers can be treated as ocean going vessels and reference was made to the larger Bench of three Judges to consider the ratio in Chowgule and Co. Pvt Ltd (supra). While deciding the said issue, it has been held as under:-25. There is no dispute for the department that by design and equipment, transhippers are intended to be used mostly to carry the cargo from harbours to the high seas and vice versa. That such transhippers often move into the open sea is also not disputed by the department. Thus considering the question from all the different angles, it is reasonable to take the view that merely because transhippers are used for carrying cargo for loading into the bulk carriers (those being unable to touch the port) they cannot be excluded from the category of ocean-going vessels. At any rate it has been demonstrated by the Government that it was not very much interested in segregating transhippers from the category of ocean-going vessels as the Government brought out a new notification enveloping all vessels including transhippers within the ambit of ocean-going vessels, almost immediately after pronouncement of the decision in ChowguleCo. (P) Ltd. That subsequent development on account of its close proximity to time cannot be overlooked as of no impact26. In the result we accept the contention of the owners of the trans-shippers that such vessels are entitled to the benefit of the notification dated 11-10-1958. The appeals are disposed of in the above terms.. The aforesaid passage refers to the Governments decision that had brought out a new notification to envelop all vessels including a transshippers within the ambit of ocean going vessels immediately after the pronouncement in Chowgule and Co. Pvt Ltd (supra)26. The decision in V.M. Salgaoncar (supra) refers to the limits of territorial waters fixed under Section 3(2) of the 1976 Act, which is distance of 12 nautical miles from the nearest point of the appropriate baseline27. In Aban Lyod Chiles Offshore Limited and another v. Union of India and Others, (2008) 11 SCC 439 the view of Division Bench of the Bombay High Court in Pride Foramer (supra) was upheld. In this case the rig was operational and used outside the territorial waters limits, but in the designated areas of the continental self and exclusive economic zones, which have been declared by the notification to be a part of the territory of India for limited purpose. The natural consequence of the said notification was to extend the Customs Act and the Customs Tariff Act to the designated areas outside the territorial waters to introduce the custom regime in such areas resulting in levy and collection of custom duty. The issue raised in the said case related to consumption of goods or stores imported by the drilling contractor and supplied to the rig. The stores used for consumption onboard the oil rigs, when stationed in the notified or designated areas, which were deemed to be territorial waters, was chargeable and customs duty was payable28. In the case at hand, neither the adjudication order nor the order passed by the tribunal has elucidated or held that the rig in question was in operation in the territorial waters or the designated/deemed territorial waters pursuant to the notification. The issue of chargeability and liability to pay customs duty has been on different precepts and grounds29. The adjudication order refers to and is predicated on the rig being brought to the port for repairs in February, 1996 for which permission was sought from the Commissioner of Customs vide letter dated 12th February, 1996 under the provisions of notification No. 153/94 Cus. The rig subsequently moved out of the port after repairs. The rig was brought for the second time to the Mumbai port for repair on 9th November, 1996 and had remained there till 2nd December, 1996. The rig thereafter was taken out and removed from the territorial waters of India as is evincible from the adjudication order. The rig was for the third time brought to the outer anchorage in Mumbai/Mumbai port on 9th December, 1998 and removed from the customs area. On this occasion, for the first time, the authorities felt that the rig had been imported into India when the rig was brought within the territorial waters for repairs. The adjudication order does not record that the rig was in operation within the territorial waters of India. On the other hand, the adjudication order does not spell out that the rig did not operate outside the territorial waters of India. The contention raised by the owner in this regard was neither specifically rejected not a different finding was recorded. The finding was that the rig when it is repaired in India, it is imported into India for home consumption. The adjudication order holds that the repairs undertaken would complete the act of import, for the requirement of home consumption was satisfied. The said finding, in our opinion, is unacceptable and faulty. Mere repair of a vessel is not putting the vessel to use in India and would not result in home consumption as the vessel was not utilized within the territory of India. Repairs are carried on the vessel and not to utilize the vessel. It would not amount to utilization or operation of the vessel/rig in India. Thus, it cannot be said that the vessel, i.e., the rig, was imported into India when it had anchored twice in 1996 and once in 1998 for the purpose of repair, for the element of home consumption is missing even when the vessel, i.e., the rig, had entered the territorial waters. Thus, it would be incorrect to hold that mere repair of the vessel in 1996 or in 1998 would constitute taxable import30. The authorities have laid emphasis on the factum that the rig was purchased for being used in the oil field of ONGC and for this purpose the owner had made an application and permission/licence for import was granted by the Ministry of Industry. The rig was purchased from foreign exchange released by the Government on the basis of the import licence for the rig. If the rig was not to be used in India, foreign exchange would not have been released and import licence would not have been granted. This argument on behalf of the department does not further the stand. It cannot be regarded as conclusive. Release of foreign exchange, approval and licence, etc. are prior to the import. Import may not take place in spite of this aforesaid clearances/licence and release of foreign exchange. There may have been violation of another enactment/provision as the rig was not imported, albeit for deciding the question whether the rig was imported into India, the requirement of home consumption has to be satisfied. Then alone, the `good, i.e., the vessel/rig would be taxable and customs duty payable under the Act. Pertinently, the adjudication order does not hold that the import had taken place in 1987 when the rig first put into operation in the high seas. This was not treated as the date of import or home consumption. The import as per the authorities had taken place when the rig was brought for repairs. The evaluation of the rig has been done on the basis of the last visit of the rig for repair in 199831. While we are disposed to accept that there was no import, we would not on the said finding hold that the owner had not violated the provisions of the Act, which are much broader and wider in scope. The Act regulates and mandates compliance by the foreign going vessels when they enter the territorial waters. Provisions of the Act are required to be met and complied with even when no goods are to be unloaded for import into India or the vessel is not a `good meant for home consumption. Thus, violations recorded by the tribunal cannot be found fault with.32. Thus analysed, we are of the indubitable opinion, that the decision rendered by the tribunal deserves our concurrence and we so do.19. In Chowgule and Co. Pvt. Ltd. (supra) on the question of chargeability of customs duty on a vessel which was being used to ship iron ore from Mormugao Harbour to ocean going carriers, it was held as under:-6. We may now refer to the relevant provisions of the Customs Act. Section 2(22) of the Customs Act defines that unless the context otherwise requires, goods includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of moveable property. Import is defined as meaning bringing into India from a place outside India. India is defined as including the territorial waters of India. Imported goods are defined to mean any goods brought into India from a place outside India but not including goods which have been cleared for home consumption. Importer is defined, in relation to any goods at any time between their importation and the time when they are cleared for home consumption as including the owner or any person holding himself out to be the importer. Conveyance is defined to include a vessel, an aircraft and a vehicle. Bill of entry is defined to mean a bill of entry referred to in Section 46. A bill of export is defined to mean a bill of export referred to in Section 50. An import manifest or import report is defined to mean the manifest or report required to be delivered under Section 30. Stores are defined to mean goods for use in a vessel or aircraft and includes fuel and spare parts and other articles of equipment whether or not for immediate fitting. | 0 | 8,548 | 2,837 | ### 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:
Bombay High Court in Pride Foramer (supra) was upheld. In this case the rig was operational and used outside the territorial waters limits, but in the designated areas of the continental self and exclusive economic zones, which have been declared by the notification to be a part of the territory of India for limited purpose. The natural consequence of the said notification was to extend the Customs Act and the Customs Tariff Act to the designated areas outside the territorial waters to introduce the custom regime in such areas resulting in levy and collection of custom duty. The issue raised in the said case related to consumption of goods or stores imported by the drilling contractor and supplied to the rig. The stores used for consumption onboard the oil rigs, when stationed in the notified or designated areas, which were deemed to be territorial waters, was chargeable and customs duty was payable. 28. In the case at hand, neither the adjudication order nor the order passed by the tribunal has elucidated or held that the rig in question was in operation in the territorial waters or the designated/deemed territorial waters pursuant to the notification. The issue of chargeability and liability to pay customs duty has been on different precepts and grounds. 29. The adjudication order refers to and is predicated on the rig being brought to the port for repairs in February, 1996 for which permission was sought from the Commissioner of Customs vide letter dated 12th February, 1996 under the provisions of notification No. 153/94 Cus. The rig subsequently moved out of the port after repairs. The rig was brought for the second time to the Mumbai port for repair on 9th November, 1996 and had remained there till 2nd December, 1996. The rig thereafter was taken out and removed from the territorial waters of India as is evincible from the adjudication order. The rig was for the third time brought to the outer anchorage in Mumbai/Mumbai port on 9th December, 1998 and removed from the customs area. On this occasion, for the first time, the authorities felt that the rig had been imported into India when the rig was brought within the territorial waters for repairs. The adjudication order does not record that the rig was in operation within the territorial waters of India. On the other hand, the adjudication order does not spell out that the rig did not operate outside the territorial waters of India. The contention raised by the owner in this regard was neither specifically rejected not a different finding was recorded. The finding was that the rig when it is repaired in India, it is imported into India for home consumption. The adjudication order holds that the repairs undertaken would complete the act of import, for the requirement of home consumption was satisfied. The said finding, in our opinion, is unacceptable and faulty. Mere repair of a vessel is not putting the vessel to use in India and would not result in home consumption as the vessel was not utilized within the territory of India. Repairs are carried on the vessel and not to utilize the vessel. It would not amount to utilization or operation of the vessel/rig in India. Thus, it cannot be said that the vessel, i.e., the rig, was imported into India when it had anchored twice in 1996 and once in 1998 for the purpose of repair, for the element of home consumption is missing even when the vessel, i.e., the rig, had entered the territorial waters. Thus, it would be incorrect to hold that mere repair of the vessel in 1996 or in 1998 would constitute taxable import. 30. The authorities have laid emphasis on the factum that the rig was purchased for being used in the oil field of ONGC and for this purpose the owner had made an application and permission/licence for import was granted by the Ministry of Industry. The rig was purchased from foreign exchange released by the Government on the basis of the import licence for the rig. If the rig was not to be used in India, foreign exchange would not have been released and import licence would not have been granted. This argument on behalf of the department does not further the stand. It cannot be regarded as conclusive. Release of foreign exchange, approval and licence, etc. are prior to the import. Import may not take place in spite of this aforesaid clearances/licence and release of foreign exchange. There may have been violation of another enactment/provision as the rig was not imported, albeit for deciding the question whether the rig was imported into India, the requirement of home consumption has to be satisfied. Then alone, the `good, i.e., the vessel/rig would be taxable and customs duty payable under the Act. Pertinently, the adjudication order does not hold that the import had taken place in 1987 when the rig first put into operation in the high seas. This was not treated as the date of import or home consumption. The import as per the authorities had taken place when the rig was brought for repairs. The evaluation of the rig has been done on the basis of the last visit of the rig for repair in 1998. 31. While we are disposed to accept that there was no import, we would not on the said finding hold that the owner had not violated the provisions of the Act, which are much broader and wider in scope. The Act regulates and mandates compliance by the foreign going vessels when they enter the territorial waters. Provisions of the Act are required to be met and complied with even when no goods are to be unloaded for import into India or the vessel is not a `good meant for home consumption. Thus, violations recorded by the tribunal cannot be found fault with. 32. Thus analysed, we are of the indubitable opinion, that the decision rendered by the tribunal deserves our concurrence and we so do.
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was brought for the second time to the Mumbai port for repair on 9th November, 1996 and had remained there till 2nd December, 1996. The rig thereafter was taken out and removed from the territorial waters of India as is evincible from the adjudication order. The rig was for the third time brought to the outer anchorage in Mumbai/Mumbai port on 9th December, 1998 and removed from the customs area. On this occasion, for the first time, the authorities felt that the rig had been imported into India when the rig was brought within the territorial waters for repairs. The adjudication order does not record that the rig was in operation within the territorial waters of India. On the other hand, the adjudication order does not spell out that the rig did not operate outside the territorial waters of India. The contention raised by the owner in this regard was neither specifically rejected not a different finding was recorded. The finding was that the rig when it is repaired in India, it is imported into India for home consumption. The adjudication order holds that the repairs undertaken would complete the act of import, for the requirement of home consumption was satisfied. The said finding, in our opinion, is unacceptable and faulty. Mere repair of a vessel is not putting the vessel to use in India and would not result in home consumption as the vessel was not utilized within the territory of India. Repairs are carried on the vessel and not to utilize the vessel. It would not amount to utilization or operation of the vessel/rig in India. Thus, it cannot be said that the vessel, i.e., the rig, was imported into India when it had anchored twice in 1996 and once in 1998 for the purpose of repair, for the element of home consumption is missing even when the vessel, i.e., the rig, had entered the territorial waters. Thus, it would be incorrect to hold that mere repair of the vessel in 1996 or in 1998 would constitute taxable import30. The authorities have laid emphasis on the factum that the rig was purchased for being used in the oil field of ONGC and for this purpose the owner had made an application and permission/licence for import was granted by the Ministry of Industry. The rig was purchased from foreign exchange released by the Government on the basis of the import licence for the rig. If the rig was not to be used in India, foreign exchange would not have been released and import licence would not have been granted. This argument on behalf of the department does not further the stand. It cannot be regarded as conclusive. Release of foreign exchange, approval and licence, etc. are prior to the import. Import may not take place in spite of this aforesaid clearances/licence and release of foreign exchange. There may have been violation of another enactment/provision as the rig was not imported, albeit for deciding the question whether the rig was imported into India, the requirement of home consumption has to be satisfied. Then alone, the `good, i.e., the vessel/rig would be taxable and customs duty payable under the Act. Pertinently, the adjudication order does not hold that the import had taken place in 1987 when the rig first put into operation in the high seas. This was not treated as the date of import or home consumption. The import as per the authorities had taken place when the rig was brought for repairs. The evaluation of the rig has been done on the basis of the last visit of the rig for repair in 199831. While we are disposed to accept that there was no import, we would not on the said finding hold that the owner had not violated the provisions of the Act, which are much broader and wider in scope. The Act regulates and mandates compliance by the foreign going vessels when they enter the territorial waters. Provisions of the Act are required to be met and complied with even when no goods are to be unloaded for import into India or the vessel is not a `good meant for home consumption. Thus, violations recorded by the tribunal cannot be found fault with.32. Thus analysed, we are of the indubitable opinion, that the decision rendered by the tribunal deserves our concurrence and we so do.19. In Chowgule and Co. Pvt. Ltd. (supra) on the question of chargeability of customs duty on a vessel which was being used to ship iron ore from Mormugao Harbour to ocean going carriers, it was held as under:-6. We may now refer to the relevant provisions of the Customs Act. Section 2(22) of the Customs Act defines that unless the context otherwise requires, goods includes - (a) vessels, aircrafts and vehicles; (b) stores; (c) baggage; (d) currency and negotiable instruments; and (e) any other kind of moveable property. Import is defined as meaning bringing into India from a place outside India. India is defined as including the territorial waters of India. Imported goods are defined to mean any goods brought into India from a place outside India but not including goods which have been cleared for home consumption. Importer is defined, in relation to any goods at any time between their importation and the time when they are cleared for home consumption as including the owner or any person holding himself out to be the importer. Conveyance is defined to include a vessel, an aircraft and a vehicle. Bill of entry is defined to mean a bill of entry referred to in Section 46. A bill of export is defined to mean a bill of export referred to in Section 50. An import manifest or import report is defined to mean the manifest or report required to be delivered under Section 30. Stores are defined to mean goods for use in a vessel or aircraft and includes fuel and spare parts and other articles of equipment whether or not for immediate fitting.
|
Technip Sa Vs. Sms Holding (Pvt.) Ltd. | directed the publication of an offer to SEAMECs taking that as the effective date.75. In reversing this judgment, SAT held that ISIS and Technip had acted in concert to gain control over Coflexip in April, 2000. We are of the opinion that the approach of the SAT was entirely wrong. For the purposes of determining Technips obligations under the Regulation it should have addressed itself as SEBI had done to the question whether ISIS and Technip were acting in concert to obtain control over the target company, namely, SEAMEC. In other words, did the shareholding of Coflexip in SEAMEC constitute a substantial part of the assets of Coflexip, or was the main purpose of acquiring control of Coflexip the acquisition of control over SEAMEC? 76. According to the SAT, the reasons which established that ISIS and Technip were acting in concert in April 2000 were as follows: "(i) "...there was shareholders agreement dated 2.11.1994 between Stena group on one side and ISIS and others on the other to control Coflexip.... It is also noted that ISIS group had not exercised its pre-emptive right to block Technips entry."(ii) "... (it was clear) from the shareholding pattern of Technip, Coflexip and ISIS that IFP was having common interest."(iii) "Whether these companies belonged to one group or that they were companies under the same management" may be in dispute. But no one can dispute that they belonged to one family in the real sense.... ISIS and IFP had one lineage - the common parenthood in IFP.... Gaz de France and Total Fina Elf-both associated with IFP family."(iv) "Coflexip and Technip are having interest in the Petroleum sector, IPF could be interested in these 2 entities joining together and forming a combine and that having regard to their common interest, it may be inferred that they must be acting together."(v) "Technip Chairmans letter that they were ultimately planning to take over Coflexip and they "were on this merger, passing through a number of necessary stages; which included "the acquisition of 30% of Coflexip in April 2000..."(vi) "ISIS has its nominees on the Board of Technip. ISIS has its nominees of Coflexip. ... Thus in a 11 member Board of Coflexip Technip ISIS combine had a majority."(Vii) "From the material available on record there is every justification to infer that the plan was to combine Technip and Coflexip and form a strong combined entity to be a business leader in the petroleum sector and that it was with this end in view Technip in which ISIS had interest acquired Coflexip in which also ISIS had interest."(viii) ".. total holding of these two companies were around 47% sufficient enough to control Coflexip in view of its 48% shares widely held by public. It is also noted that in fact in the annual general meeting of Coflexip held in May 2000 and May 2001 (before the merger effected on 3.7.2001) Technip had exercised 54% and 57% of the voting rights, that this itself is indicative of the fact that Technip had more than 50% voting rights at its command, even though on record it was holding only 29%."(ix) "ISIS objecting to the setting up of a committee to revise that offer price, is but natural as an increase in offer price was to its advantage and by doing so it was not in any way acting against its objective of helping Technip to acquire control over Coflexip. Adding a little more financial burden on Technip by asking for higher offer price can not be viewed as a hostile action from ISIS or as evidence of non-co-operation."(x) "Technip possibly wanted to strengthen its position dejure as well with 99% and they acquired shares to that level through the public offer in July, 2001. In my view the acquisition raising the shareholding to 99% in Coflexip was the final act whereas the process started on 12.4.2000."(xi) "... in my view Technip had decided to take over control of Coflexip and to achieve the said objective, acquired 29.68% shares of Coflexip on 12.4.2000. The evidence before me leads to the conclusion that ISIS had acted in concert for the said purpose." 77. We need not go into the reasons separately although we must say that we disapprove of the introduction of the concept of a joint family into corporate law when the statutory provisions, particularly Regulation 2(e) exhaustively defines what would amount to acting in concert. More particularly when Regulation 3(1)(e)(i) provides that:- (1) "Nothing contained in Regulations 10, 11 and 12 of Regulations 10, 11 and 12 these Regulations shall apply to;(e) Interse transfer of shares amongst -(i) group companies, coming within the definition of group as defined in the Monopolies and Restrictive Trade Practices Act, 1969 (25 of 1969)". 78. The IFP family if any would be nothing more than such a group. Furthermore, it is abundantly clear that even the name of SEAMEC does not feature in any of the several reasons put forward by SAT whereas that, as we must emphasise, should have been the primary point of focus. The respondents have sought to adduce further evidence before us to the effect that SEAMEC was in the contemplation of Technip when it purchased Stenas shares in Coflexip. There is no question of allowing any fresh evidence to be adduced at this stage. Besides we do not think that any evidence of mere contemplation of SEAMECs assets would do. That should have been the principal objective in order to trigger the Regulations as it was not the respondents case before SAT that the shareholding of Coflexip in SEAMEC constituted a substantial part of the assets of Coflexip nor has SAT so found. SEBI had noted that the takeover of SEAMEC was only an incidental fall out of the control of Coflexip and that SEAMEC formed a small and insignificant portion of the total business of Coflexip contributing merely 2% of the total asset base of Coflexip as on December, 2000. The finding was not reversed by SAT. | 1[ds]12. Admittedly both Coflexip and Technip were incorporated according to and under the laws of France. They are therefore domiciled in France. Normally, we would resolve any issue relating to their internal affairs by applying the law of their domicil, in this case FrenchBut then it came to the conclusion that even the question "whether Technip acquired control over Coflexip on 12.4.2000 and consequently over SEAMEC need be tested in the light of 2(c) definition". In other words Indian law would apply to determine whether the control of Coflexip was taken over by Technip. According to SAT any view to the contrary would "lead to absurd consequences even defeating the very objective of the Takeover Regulations."14. SATs conclusion as to the applicable law is questioned by the appellant and that cannot be considered as a question ofThe jurisdiction of SEBI and SAT or indeed this Court to apply foreign law has not been questioned at any stage. What is referred to as "private international law" by some authorities [See Cheshire & Norths Private International Law] is referred to as conflict of laws by others [Dicey & Morris : The Conflict of Laws]. Whatever the nomenclature, it is based on the just disposal of proceedings having a foreign element. To quote fromKuwait Airways Corp. Vs. Iraqi Airways Co. (2002) UKHLjurisprudence is founded on the recognition that in proceedings having connections with more than one country an issue brought before a court in one country may be more appropriately decided by reference to the laws of another country even though those laws are different from the law of the forum court.We have already said and it must be taken to be a generally accepted rule of private international law, that questions of status of a persons domicile ought in general to be recognized in other countries unless it is contrary to public policy. Questions of status of an individual would include matters such as legal competence, marriage and custody. (See in reLangleys Settlement Trusts (1962) Ch.. Russ (1962) 3 AllE.R.; Smt. Surinder Kaur Sandhu vs. Harbax Singh Sandhu: AIR 1984 SC 1224 ;Oppenheimer vs. Cattermole (1975) 1 All ER538). Questions as to the status of a corporation are to be decided according to the laws of its domicile or incorporation subject to certain exceptions including the exception of domestic public policy. This is because "a corporation is a purely artificial body created by law. It can act only in accordance with the law of its creation". Therefore, if it is a corporation, it can be so only by virtue of the law by which it was incorporated and it is to this law alone that all questions concerning the creation and dissolution of the corporate status are referred unless it is contrary to public policy. (See: In the matter ofAmerican Fibre Chair Seat Corporation. William Daum et al. vs. Arthur J Kinsman 265 N.Y. 416; 193 N.E.c. vs. Harry Lewis, 531 A.2did Rogers vs. Gauranty Trust Company of New York (288 US 123 - 151 (S.C.ss Stiftung vs. Rayner and Keller Ltd. (1966) 2 All ERon & others vs. Brahmachari & Others, 1998 Ch.Kuwait Airways Corp. vs. Iraqi Airways Co. (No. 3)9; LazardBrothers & Co. vs. Midland Bank Ltd. (1933) AC 289 atp.174).17. This general rule regarding determination of status by the lex incorporations will not apply when the issue relates to the discharge of obligations or assertion of rights by a corporation in another country whether such obligation is imposed by or right arises under statute or contract which is governed by the law of such other country.The relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis a vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system of law.23. But, contend that respondents, the French law even if applicable, was contrary to the Act Regulations and is thereby contrary to the public policy underlying the Indian enactment. In our view, domestic public policy which can justify a disregard of the applicable foreign law must relate to basic principles of morality and justice and the foreign law amount to a flagrant gross breach of such principles.In a sense all statutes enacted by Parliament or the States can be said to be part of Indian public policy. But to discard a foreign law only because it is contrary to an Indian statute would defeat the basis of private international law to which India undisputedly subscribes: (See: Surinder Kaur Sandhu vs. Harbax Singh Sandhu (supra). To quote again from the Kuwait Airways caselaws of the other country may have adopted solutions, or even basic principles, rejected by the law of the forum country. These differences do not in themselves furnish reasons why the forum court should decline to apply the foreign law. On the contrary, the existence of differences is the very reason why it may be appropriate for the forum court to have recourse to the foreign law. If the laws of all countries were uniform there would be no conflict of laws".Therefore, French Law at the relevant time provided that a company holds control over another (the Target Company) in the following cases.(i) the Company holds, directly, or indirectly, title to a number of shares granting to such holder a majority of voting rights in the general meeting of shareholders of the Target.(ii) the Company holds the majority of voting rights in the Target pursuant to an agreement with a third party or as a result of acting in concert with such third party.(iii) the Company in effect determines, through the votes it holds, the decisions taken in the general meetings of shareholders of the Target (what is known as de facto control).40. The Stock Exchange authorities in France are the Conceil des Marches Financiers or the French Financial Markets Authority (referred to as the CMF) and the Commission des Operations de Bourse viz. the French Stock Exchange Authority (referred to as the COB). They are regulatory bodies with powers of inspection, supervision and disciplinary action.The supervisory role of CMF is itself subject to the Commission Bancaire or the French Banking Commission and the COB. Article 1 and Article 2 of Decree No. 96-869 dated October 3, 1996 also provide for appeals from the decisions taken by the CMF before the Paris Courts of Appeals. Article 33 of Chapter-I Title-II provides that the CMF shall set forth the Rules governing public offers including the conditions under which a natural or legal person, acting alone or in concert within the meaning of Article 356-1-3 of Law 66-37 dated July 24, 1966 aforesaid and who directly or indirectly comes to hold a certain percentage of the capital stock or voting rights in a company whose shares are traded on a regulated market to forthwith inform the CMF and file a proposed tender offer with a view to acquiring a specified quantity of the companys securities. If this finding is not made, the securities that the person holds in excess of the aforementioned percentage of the capital stock or voting rights shall be deprived of voting rights.41. The provisions in French law relating to takeovers as we see them are, therefore, rigorous. The Indian law is no less rigorous and differs only marginally with the French law on the subject.The difference between the French law and their regulations relates to the prescribed limits of share holding for control by one company over another. This cannot conceivably make the French law violative of any public policy underlying the Acts and Regulations so as to persuade us to disregard the French Law.Thus it is the French law which we must apply to decide whether Technip took over the control of Coflexip in April 2000 or July 2001. Incidentally the opinions of various persons claiming to be experts in French Commercial Law have expressed diametrically opposing views as to whether Technip could be said to have taken control of Coflexip applying the relevant French law, in April 2000. We do not propose to rely upon either of the views expressed as none of them was subjected to crosssubmission ignores Article 356-1.The concept of a takeover by acting in concert was there in 2000. In fact Article 355-1 of the French Companies Act merely sets but factors determining when a company could be said to hold control over another. It does not, as Article 356.1 does, speak of the method for acquiring such control.45. At this stage and before we apply the law to the facts we may note one aspect that has been lost sight of by SAT and that is that irrespective of the status of Coflexip and Technip to each other, in order to trigger Regulations 10 to 12, it would have to be established that the purchase of the 29.68% shares by Technip in Coflexip was with the object of taking control of SEAMEC. That is what the relevant Regulations provide and also what is alleged in the Show Cause Notice issued to Technip by SEBI. The allegation in the show cause notice was that Technip, the acquirer and ISIS as a shareholder of Coflexip acted in concert to acquire control over Coflexip and therefore SEAMEC treating SEAMEC as the target company. The emphasis is on the target company whether the case is of direct or indirect acquisition under the Regulations. Thus Regulation 2(b) of the Regulations defines acquirer as meaning any person who, directly or indirectly, acquires or agrees to acquire shares or voting rights in the target company and acquirer also means a person who acquire or agrees to acquire control over the target company either by himself or with any person acting in concert with the acquirer.53. The standard of proof required to establish such concert is one of probability and may be established if having regard to their relation etc., their conduct, and their common interest, that it may be inferred that they must be acting together evidence of wide terms. It covers an understanding as well as an agreement, and an informal as well as a formal arrangement, which leads to co-operation to purchase shares to acquire control of a company. This is necessary, as such arrangements are often informal, and the understanding may arise from a hint. The understanding may be tacit, and the definition covers situations where the parties act on the basis of a nod or a wink... Unless persons declare this agreement or understanding, there is rarely direct evidence of action in concert, and the Panel must draw on its experience and commonsense to determine whether those involved in any dealings have some form of understanding and are acting in co-operation with each other. [Guinness PLC, The Distillers Company PLC (Panel hearing on 25th August 1987 and 2nd September, 1987 at page 10052 - Reasons for Decisions of the Panel.54. According to the Dictionaire Permanent du Droit des Affairs French law does not make proof of the concerted action dependant upon the existence of a written document."However, given the serious consequence linked to the existence of a concerted action, only serious presumptions drawn from actual date on lead to a qualification of a concerted action. The mere observation of similarity of behaviours cannot constitute such a proof. Even the common position of certain shareholders is not necessarily indicative of the existence of a concerted action. Such shareholders may have adopted legitimately a similar position, independently, because of their own strategic interest". (Extract from the 1989 French Securities and Exchange Commission Report).Clearly a purchase of 29.68% shares in a company would not by itself give the purchase de jure control of the company under French Law. The acceptance of the statement of intent filed by Technip before the Stock Exchange Authorities would not however be conclusive of the matter. It may be that the Market Authorities agree to the publication of a statement or a notice or a financial publication. It may also be that those professional independent bodies have professionally verified the contents of such communications and have been satisfied with their accuracy. However, there is no adjudicatory process and there was no judicial decision of any authority which we could recognize as a foreign judgment on any principle of judicial comity or conflict of laws.We are of the opinion that having regard to the balance of probabilities there was no evidence that Technip obtained de facto control of Coflexip in April 2000. The evidence would rather suggest that it was nothing more than a strategic alliance. The mere fact that in two Annual General Meetings of Coflexip Technip was in the majority cannot by itself establish its control over Coflexip. It may be that in a company with a large and dispersed membership, a comparatively small proportion of the total shares, if held in one hand, may enable actual control to be exercised [Hindustan Motors Ltd. vs. Monopolies and Restrictive Trade Practices Commission AIR 1973 Calcutta 450]. But the obtaining of a majority in a shareholders meeting may have been the outcome of absenteeism or some other factor. It is not as if Technip exerted its influence over any policy matters of Coflexip. Besides this was not the case in the Show Cause Notice. The allegation was that ISIS and Technip acted in concert in the matter of purchase of Stenas shares in Coflexip by Technip. That has not been established.73. Technips explanation for ISIS not exercising its preemptive right under the shareholders agreement is plausible. The explanation was that ISIS was a subsidiary of IFP and it is not the policy of IFP to manage companies in which it invests. ISIS therefore was not interested in acquiring further shares in Coflexip nor did it have the financial means to do so. ISIS was a Government controlled company and was holdings shares on behalf of IFP, a Government body, and its failure to exercise its rights of pre-emption could be a Government decision should IFP have caused ISIS to proceed with such a huge investment, it could have been in breach of the relevant EU regulations as intervention of the State in Private Industry.74. In any event there is no evidence that Technip acquired Coflexip if it at all did so in April 2000, so as to gain control of SEAMEC. Yet that is the aspect with which we are concerned. SEBI said that on the material before it, it was difficult to hold that IFP along with ISIS was acting in concert with Technip for the purpose of acquiring shares/voting rights/control of Coflexip so as to indirectly acquire control over SEAMEC in April, 2000. But in view of the admitted takeover of Coflexip by Technip in July 2001 directed the publication of an offer to SEAMECs taking that as the effective date.75. In reversing this judgment, SAT held that ISIS and Technip had acted in concert to gain control over Coflexip in April, 2000. We are of the opinion that the approach of the SAT was entirely wrong. For the purposes of determining Technips obligations under the Regulation it should have addressed itself as SEBI had done to the question whether ISIS and Technip were acting in concert to obtain control over the target company, namely, SEAMEC. In other words, did the shareholding of Coflexip in SEAMEC constitute a substantial part of the assets of Coflexip, or was the main purpose of acquiring control of Coflexip the acquisition of control overWe need not go into the reasons separately although we must say that we disapprove of the introduction of the concept of a joint family into corporate law when the statutory provisions, particularly Regulation 2(e) exhaustively defines what would amount to acting in concert. More particularly when Regulation 3(1)(e)(i) provides"Nothing contained in Regulations 10, 11 and 12 of Regulations 10, 11 and 12 these Regulations shall apply to;(e) Interse transfer of shares amongst -(i) group companies, coming within the definition of group as defined in the Monopolies and Restrictive Trade Practices Act, 1969 (25 of 1969)".The IFP family if any would be nothing more than such a group. Furthermore, it is abundantly clear that even the name of SEAMEC does not feature in any of the several reasons put forward by SAT whereas that, as we must emphasise, should have been the primary point of focus. The respondents have sought to adduce further evidence before us to the effect that SEAMEC was in the contemplation of Technip when it purchased Stenas shares in Coflexip. There is no question of allowing any fresh evidence to be adduced at this stage. Besides we do not think that any evidence of mere contemplation of SEAMECs assets would do. That should have been the principal objective in order to trigger the Regulations as it was not the respondents case before SAT that the shareholding of Coflexip in SEAMEC constituted a substantial part of the assets of Coflexip nor has SAT so found. SEBI had noted that the takeover of SEAMEC was only an incidental fall out of the control of Coflexip and that SEAMEC formed a small and insignificant portion of the total business of Coflexip contributing merely 2% of the total asset base of Coflexip as on December, 2000. The finding was not reversed by SAT.Admittedly both Coflexip and Technip were incorporated according to and under the laws of France. They are therefore domiciled in France. Normally, we would resolve any issue relating to their internal affairs by applying the law of their domicil, in this case Frencht then it came to the conclusion that even the question "whether Technip acquired control over Coflexip on 12.4.2000 and consequently over SEAMEC need be tested in the light of 2(c) definition". In other words Indian law would apply to determine whether the control of Coflexip was taken over by Technip. According to SAT any view to the contrary would "lead to absurd consequences even defeating the very objective of the Takeover Regulations."14. SATs conclusion as to the applicable law is questioned by the appellant and that cannot be considered as a question ofe jurisdiction of SEBI and SAT or indeed this Court to apply foreign law has not been questioned at any stage. What is referred to as "private international law" by some authorities [See Cheshire & Norths Private International Law] is referred to as conflict of laws by others [Dicey & Morris : The Conflict of Laws]. Whatever the nomenclature, it is based on the just disposal of proceedings having a foreign element. To quote fromKuwait Airways Corp. Vs. Iraqi Airways Co. (2002) UKHLe is founded on the recognition that in proceedings having connections with more than one country an issue brought before a court in one country may be more appropriately decided by reference to the laws of another country even though those laws are different from the law of the forum court.e have already said and it must be taken to be a generally accepted rule of private international law, that questions of status of a persons domicile ought in general to be recognized in other countries unless it is contrary to public policy. Questions of status of an individual would include matters such as legal competence, marriage and custody. (See in reLangleys Settlement Trusts (1962) Ch.. Russ (1962) 3 AllE.R.; Smt. Surinder Kaur Sandhu vs. Harbax Singh Sandhu: AIR 1984 SC 1224 ;Oppenheimer vs. Cattermole (1975) 1 All ER538). Questions as to the status of a corporation are to be decided according to the laws of its domicile or incorporation subject to certain exceptions including the exception of domestic public policy. This is because "a corporation is a purely artificial body created by law. It can act only in accordance with the law of its creation". Therefore, if it is a corporation, it can be so only by virtue of the law by which it was incorporated and it is to this law alone that all questions concerning the creation and dissolution of the corporate status are referred unless it is contrary to public policy. (See: In the matter ofAmerican Fibre Chair Seat Corporation. William Daum et al. vs. Arthur J Kinsman 265 N.Y. 416; 193 N.E.c. vs. Harry Lewis, 531 A.2did Rogers vs. Gauranty Trust Company of New York (288 US 123 - 151 (S.C.ss Stiftung vs. Rayner and Keller Ltd. (1966) 2 All ERon & others vs. Brahmachari & Others, 1998 Ch.Kuwait Airways Corp. vs. Iraqi Airways Co. (No. 3)9; LazardBrothers & Co. vs. Midland Bank Ltd. (1933) AC 289 atp.174).17. This general rule regarding determination of status by the lex incorporations will not apply when the issue relates to the discharge of obligations or assertion of rights by a corporation in another country whether such obligation is imposed by or right arises under statute or contract which is governed by the law of such other country.e relationship of Technip to Coflexip whether one of control or not is really a question of their status. The applicable law would therefore be the law of their domicil, namely, French law. Having determined their status according to French Law, the next question as to their obligation under the Indian Law vis a vis SEAMEC would have to be governed exclusively by Indian law (in this case the Act and the Regulations). SATs error lay in not differentiating between the two issues of status and the obligation by reason of the status and in seeking to cover both under a single system of law.23. But, contend that respondents, the French law even if applicable, was contrary to the Act Regulations and is thereby contrary to the public policy underlying the Indian enactment. In our view, domestic public policy which can justify a disregard of the applicable foreign law must relate to basic principles of morality and justice and the foreign law amount to a flagrant gross breach of such principles.In a sense all statutes enacted by Parliament or the States can be said to be part of Indian public policy. But to discard a foreign law only because it is contrary to an Indian statute would defeat the basis of private international law to which India undisputedly subscribes: (See: Surinder Kaur Sandhu vs. Harbax Singh Sandhu (supra). To quote again from the Kuwait Airways caselaws of the other country may have adopted solutions, or even basic principles, rejected by the law of the forum country. These differences do not in themselves furnish reasons why the forum court should decline to apply the foreign law. On the contrary, the existence of differences is the very reason why it may be appropriate for the forum court to have recourse to the foreign law. If the laws of all countries were uniform there would be no conflict of laws"., French Law at the relevant time provided that a company holds control over another (the Target Company) in the following cases.(i) the Company holds, directly, or indirectly, title to a number of shares granting to such holder a majority of voting rights in the general meeting of shareholders of the Target.(ii) the Company holds the majority of voting rights in the Target pursuant to an agreement with a third party or as a result of acting in concert with such third party.(iii) the Company in effect determines, through the votes it holds, the decisions taken in the general meetings of shareholders of the Target (what is known as de facto control).40. The Stock Exchange authorities in France are the Conceil des Marches Financiers or the French Financial Markets Authority (referred to as the CMF) and the Commission des Operations de Bourse viz. the French Stock Exchange Authority (referred to as the COB). They are regulatory bodies with powers of inspection, supervision and disciplinary action.The supervisory role of CMF is itself subject to the Commission Bancaire or the French Banking Commission and the COB. Article 1 and Article 2 of Decree No. 96-869 dated October 3, 1996 also provide for appeals from the decisions taken by the CMF before the Paris Courts of Appeals. Article 33 of Chapter-I Title-II provides that the CMF shall set forth the Rules governing public offers including the conditions under which a natural or legal person, acting alone or in concert within the meaning of Article 356-1-3 of Law 66-37 dated July 24, 1966 aforesaid and who directly or indirectly comes to hold a certain percentage of the capital stock or voting rights in a company whose shares are traded on a regulated market to forthwith inform the CMF and file a proposed tender offer with a view to acquiring a specified quantity of the companys securities. If this finding is not made, the securities that the person holds in excess of the aforementioned percentage of the capital stock or voting rights shall be deprived of voting rights.41. The provisions in French law relating to takeovers as we see them are, therefore, rigorous. The Indian law is no less rigorous and differs only marginally with the French law on the subject.e difference between the French law and their regulations relates to the prescribed limits of share holding for control by one company over another. This cannot conceivably make the French law violative of any public policy underlying the Acts and Regulations so as to persuade us to disregard the French Law.s it is the French law which we must apply to decide whether Technip took over the control of Coflexip in April 2000 or July 2001. Incidentally the opinions of various persons claiming to be experts in French Commercial Law have expressed diametrically opposing views as to whether Technip could be said to have taken control of Coflexip applying the relevant French law, in April 2000. We do not propose to rely upon either of the views expressed as none of them was subjected to crossn ignores Article 356-1.The concept of a takeover by acting in concert was there in 2000. In fact Article 355-1 of the French Companies Act merely sets but factors determining when a company could be said to hold control over another. It does not, as Article 356.1 does, speak of the method for acquiring such control.45. At this stage and before we apply the law to the facts we may note one aspect that has been lost sight of by SAT and that is that irrespective of the status of Coflexip and Technip to each other, in order to trigger Regulations 10 to 12, it would have to be established that the purchase of the 29.68% shares by Technip in Coflexip was with the object of taking control of SEAMEC. That is what the relevant Regulations provide and also what is alleged in the Show Cause Notice issued to Technip by SEBI. The allegation in the show cause notice was that Technip, the acquirer and ISIS as a shareholder of Coflexip acted in concert to acquire control over Coflexip and therefore SEAMEC treating SEAMEC as the target company. The emphasis is on the target company whether the case is of direct or indirect acquisition under the Regulations. Thus Regulation 2(b) of the Regulations defines acquirer as meaning any person who, directly or indirectly, acquires or agrees to acquire shares or voting rights in the target company and acquirer also means a person who acquire or agrees to acquire control over the target company either by himself or with any person acting in concert with the acquirer.53. The standard of proof required to establish such concert is one of probability and may be established if having regard to their relation etc., their conduct, and their common interest, that it may be inferred that they must be acting together evidence of wide terms. It covers an understanding as well as an agreement, and an informal as well as a formal arrangement, which leads to co-operation to purchase shares to acquire control of a company. This is necessary, as such arrangements are often informal, and the understanding may arise from a hint. The understanding may be tacit, and the definition covers situations where the parties act on the basis of a nod or a wink... Unless persons declare this agreement or understanding, there is rarely direct evidence of action in concert, and the Panel must draw on its experience and commonsense to determine whether those involved in any dealings have some form of understanding and are acting in co-operation with each other. [Guinness PLC, The Distillers Company PLC (Panel hearing on 25th August 1987 and 2nd September, 1987 at page 10052 - Reasons for Decisions of the Panel.54. According to the Dictionaire Permanent du Droit des Affairs French law does not make proof of the concerted action dependant upon the existence of a written document."However, given the serious consequence linked to the existence of a concerted action, only serious presumptions drawn from actual date on lead to a qualification of a concerted action. The mere observation of similarity of behaviours cannot constitute such a proof. Even the common position of certain shareholders is not necessarily indicative of the existence of a concerted action. Such shareholders may have adopted legitimately a similar position, independently, because of their own strategic interest". (Extract from the 1989 French Securities and Exchange Commission Report).y a purchase of 29.68% shares in a company would not by itself give the purchase de jure control of the company under French Law. The acceptance of the statement of intent filed by Technip before the Stock Exchange Authorities would not however be conclusive of the matter. It may be that the Market Authorities agree to the publication of a statement or a notice or a financial publication. It may also be that those professional independent bodies have professionally verified the contents of such communications and have been satisfied with their accuracy. However, there is no adjudicatory process and there was no judicial decision of any authority which we could recognize as a foreign judgment on any principle of judicial comity or conflict of laws.We are of the opinion that having regard to the balance of probabilities there was no evidence that Technip obtained de facto control of Coflexip in April 2000. The evidence would rather suggest that it was nothing more than a strategic alliance. The mere fact that in two Annual General Meetings of Coflexip Technip was in the majority cannot by itself establish its control over Coflexip. It may be that in a company with a large and dispersed membership, a comparatively small proportion of the total shares, if held in one hand, may enable actual control to be exercised [Hindustan Motors Ltd. vs. Monopolies and Restrictive Trade Practices Commission AIR 1973 Calcutta 450]. But the obtaining of a majority in a shareholders meeting may have been the outcome of absenteeism or some other factor. It is not as if Technip exerted its influence over any policy matters of Coflexip. Besides this was not the case in the Show Cause Notice. The allegation was that ISIS and Technip acted in concert in the matter of purchase of Stenas shares in Coflexip by Technip. That has not been established.73. Technips explanation for ISIS not exercising its preemptive right under the shareholders agreement is plausible. The explanation was that ISIS was a subsidiary of IFP and it is not the policy of IFP to manage companies in which it invests. ISIS therefore was not interested in acquiring further shares in Coflexip nor did it have the financial means to do so. ISIS was a Government controlled company and was holdings shares on behalf of IFP, a Government body, and its failure to exercise its rights of pre-emption could be a Government decision should IFP have caused ISIS to proceed with such a huge investment, it could have been in breach of the relevant EU regulations as intervention of the State in Private Industry.74. In any event there is no evidence that Technip acquired Coflexip if it at all did so in April 2000, so as to gain control of SEAMEC. Yet that is the aspect with which we are concerned. SEBI said that on the material before it, it was difficult to hold that IFP along with ISIS was acting in concert with Technip for the purpose of acquiring shares/voting rights/control of Coflexip so as to indirectly acquire control over SEAMEC in April, 2000. But in view of the admitted takeover of Coflexip by Technip in July 2001 directed the publication of an offer to SEAMECs taking that as the effective date.75. In reversing this judgment, SAT held that ISIS and Technip had acted in concert to gain control over Coflexip in April, 2000. We are of the opinion that the approach of the SAT was entirely wrong. For the purposes of determining Technips obligations under the Regulation it should have addressed itself as SEBI had done to the question whether ISIS and Technip were acting in concert to obtain control over the target company, namely, SEAMEC. In other words, did the shareholding of Coflexip in SEAMEC constitute a substantial part of the assets of Coflexip, or was the main purpose of acquiring control of Coflexip the acquisition of control overe need not go into the reasons separately although we must say that we disapprove of the introduction of the concept of a joint family into corporate law when the statutory provisions, particularly Regulation 2(e) exhaustively defines what would amount to acting in concert. More particularly when Regulation 3(1)(e)(i) providesg contained in Regulations 10, 11 and 12 of Regulations 10, 11 and 12 these Regulations shall apply to;(e) Interse transfer of shares amongst -(i) group companies, coming within the definition of group as defined in the Monopolies and Restrictive Trade Practices Act, 1969 (25 of 1969)".e IFP family if any would be nothing more than such a group. Furthermore, it is abundantly clear that even the name of SEAMEC does not feature in any of the several reasons put forward by SAT whereas that, as we must emphasise, should have been the primary point of focus. The respondents have sought to adduce further evidence before us to the effect that SEAMEC was in the contemplation of Technip when it purchased Stenas shares in Coflexip. There is no question of allowing any fresh evidence to be adduced at this stage. Besides we do not think that any evidence of mere contemplation of SEAMECs assets would do. That should have been the principal objective in order to trigger the Regulations as it was not the respondents case before SAT that the shareholding of Coflexip in SEAMEC constituted a substantial part of the assets of Coflexip nor has SAT so found. SEBI had noted that the takeover of SEAMEC was only an incidental fall out of the control of Coflexip and that SEAMEC formed a small and insignificant portion of the total business of Coflexip contributing merely 2% of the total asset base of Coflexip as on December, 2000. The finding was not reversed by SAT. | 1 | 11,518 | 6,482 | ### Instruction:
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directed the publication of an offer to SEAMECs taking that as the effective date.75. In reversing this judgment, SAT held that ISIS and Technip had acted in concert to gain control over Coflexip in April, 2000. We are of the opinion that the approach of the SAT was entirely wrong. For the purposes of determining Technips obligations under the Regulation it should have addressed itself as SEBI had done to the question whether ISIS and Technip were acting in concert to obtain control over the target company, namely, SEAMEC. In other words, did the shareholding of Coflexip in SEAMEC constitute a substantial part of the assets of Coflexip, or was the main purpose of acquiring control of Coflexip the acquisition of control over SEAMEC? 76. According to the SAT, the reasons which established that ISIS and Technip were acting in concert in April 2000 were as follows: "(i) "...there was shareholders agreement dated 2.11.1994 between Stena group on one side and ISIS and others on the other to control Coflexip.... It is also noted that ISIS group had not exercised its pre-emptive right to block Technips entry."(ii) "... (it was clear) from the shareholding pattern of Technip, Coflexip and ISIS that IFP was having common interest."(iii) "Whether these companies belonged to one group or that they were companies under the same management" may be in dispute. But no one can dispute that they belonged to one family in the real sense.... ISIS and IFP had one lineage - the common parenthood in IFP.... Gaz de France and Total Fina Elf-both associated with IFP family."(iv) "Coflexip and Technip are having interest in the Petroleum sector, IPF could be interested in these 2 entities joining together and forming a combine and that having regard to their common interest, it may be inferred that they must be acting together."(v) "Technip Chairmans letter that they were ultimately planning to take over Coflexip and they "were on this merger, passing through a number of necessary stages; which included "the acquisition of 30% of Coflexip in April 2000..."(vi) "ISIS has its nominees on the Board of Technip. ISIS has its nominees of Coflexip. ... Thus in a 11 member Board of Coflexip Technip ISIS combine had a majority."(Vii) "From the material available on record there is every justification to infer that the plan was to combine Technip and Coflexip and form a strong combined entity to be a business leader in the petroleum sector and that it was with this end in view Technip in which ISIS had interest acquired Coflexip in which also ISIS had interest."(viii) ".. total holding of these two companies were around 47% sufficient enough to control Coflexip in view of its 48% shares widely held by public. It is also noted that in fact in the annual general meeting of Coflexip held in May 2000 and May 2001 (before the merger effected on 3.7.2001) Technip had exercised 54% and 57% of the voting rights, that this itself is indicative of the fact that Technip had more than 50% voting rights at its command, even though on record it was holding only 29%."(ix) "ISIS objecting to the setting up of a committee to revise that offer price, is but natural as an increase in offer price was to its advantage and by doing so it was not in any way acting against its objective of helping Technip to acquire control over Coflexip. Adding a little more financial burden on Technip by asking for higher offer price can not be viewed as a hostile action from ISIS or as evidence of non-co-operation."(x) "Technip possibly wanted to strengthen its position dejure as well with 99% and they acquired shares to that level through the public offer in July, 2001. In my view the acquisition raising the shareholding to 99% in Coflexip was the final act whereas the process started on 12.4.2000."(xi) "... in my view Technip had decided to take over control of Coflexip and to achieve the said objective, acquired 29.68% shares of Coflexip on 12.4.2000. The evidence before me leads to the conclusion that ISIS had acted in concert for the said purpose." 77. We need not go into the reasons separately although we must say that we disapprove of the introduction of the concept of a joint family into corporate law when the statutory provisions, particularly Regulation 2(e) exhaustively defines what would amount to acting in concert. More particularly when Regulation 3(1)(e)(i) provides that:- (1) "Nothing contained in Regulations 10, 11 and 12 of Regulations 10, 11 and 12 these Regulations shall apply to;(e) Interse transfer of shares amongst -(i) group companies, coming within the definition of group as defined in the Monopolies and Restrictive Trade Practices Act, 1969 (25 of 1969)". 78. The IFP family if any would be nothing more than such a group. Furthermore, it is abundantly clear that even the name of SEAMEC does not feature in any of the several reasons put forward by SAT whereas that, as we must emphasise, should have been the primary point of focus. The respondents have sought to adduce further evidence before us to the effect that SEAMEC was in the contemplation of Technip when it purchased Stenas shares in Coflexip. There is no question of allowing any fresh evidence to be adduced at this stage. Besides we do not think that any evidence of mere contemplation of SEAMECs assets would do. That should have been the principal objective in order to trigger the Regulations as it was not the respondents case before SAT that the shareholding of Coflexip in SEAMEC constituted a substantial part of the assets of Coflexip nor has SAT so found. SEBI had noted that the takeover of SEAMEC was only an incidental fall out of the control of Coflexip and that SEAMEC formed a small and insignificant portion of the total business of Coflexip contributing merely 2% of the total asset base of Coflexip as on December, 2000. The finding was not reversed by SAT.
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a proof. Even the common position of certain shareholders is not necessarily indicative of the existence of a concerted action. Such shareholders may have adopted legitimately a similar position, independently, because of their own strategic interest". (Extract from the 1989 French Securities and Exchange Commission Report).y a purchase of 29.68% shares in a company would not by itself give the purchase de jure control of the company under French Law. The acceptance of the statement of intent filed by Technip before the Stock Exchange Authorities would not however be conclusive of the matter. It may be that the Market Authorities agree to the publication of a statement or a notice or a financial publication. It may also be that those professional independent bodies have professionally verified the contents of such communications and have been satisfied with their accuracy. However, there is no adjudicatory process and there was no judicial decision of any authority which we could recognize as a foreign judgment on any principle of judicial comity or conflict of laws.We are of the opinion that having regard to the balance of probabilities there was no evidence that Technip obtained de facto control of Coflexip in April 2000. The evidence would rather suggest that it was nothing more than a strategic alliance. The mere fact that in two Annual General Meetings of Coflexip Technip was in the majority cannot by itself establish its control over Coflexip. It may be that in a company with a large and dispersed membership, a comparatively small proportion of the total shares, if held in one hand, may enable actual control to be exercised [Hindustan Motors Ltd. vs. Monopolies and Restrictive Trade Practices Commission AIR 1973 Calcutta 450]. But the obtaining of a majority in a shareholders meeting may have been the outcome of absenteeism or some other factor. It is not as if Technip exerted its influence over any policy matters of Coflexip. Besides this was not the case in the Show Cause Notice. The allegation was that ISIS and Technip acted in concert in the matter of purchase of Stenas shares in Coflexip by Technip. That has not been established.73. Technips explanation for ISIS not exercising its preemptive right under the shareholders agreement is plausible. The explanation was that ISIS was a subsidiary of IFP and it is not the policy of IFP to manage companies in which it invests. ISIS therefore was not interested in acquiring further shares in Coflexip nor did it have the financial means to do so. ISIS was a Government controlled company and was holdings shares on behalf of IFP, a Government body, and its failure to exercise its rights of pre-emption could be a Government decision should IFP have caused ISIS to proceed with such a huge investment, it could have been in breach of the relevant EU regulations as intervention of the State in Private Industry.74. In any event there is no evidence that Technip acquired Coflexip if it at all did so in April 2000, so as to gain control of SEAMEC. Yet that is the aspect with which we are concerned. SEBI said that on the material before it, it was difficult to hold that IFP along with ISIS was acting in concert with Technip for the purpose of acquiring shares/voting rights/control of Coflexip so as to indirectly acquire control over SEAMEC in April, 2000. But in view of the admitted takeover of Coflexip by Technip in July 2001 directed the publication of an offer to SEAMECs taking that as the effective date.75. In reversing this judgment, SAT held that ISIS and Technip had acted in concert to gain control over Coflexip in April, 2000. We are of the opinion that the approach of the SAT was entirely wrong. For the purposes of determining Technips obligations under the Regulation it should have addressed itself as SEBI had done to the question whether ISIS and Technip were acting in concert to obtain control over the target company, namely, SEAMEC. In other words, did the shareholding of Coflexip in SEAMEC constitute a substantial part of the assets of Coflexip, or was the main purpose of acquiring control of Coflexip the acquisition of control overe need not go into the reasons separately although we must say that we disapprove of the introduction of the concept of a joint family into corporate law when the statutory provisions, particularly Regulation 2(e) exhaustively defines what would amount to acting in concert. More particularly when Regulation 3(1)(e)(i) providesg contained in Regulations 10, 11 and 12 of Regulations 10, 11 and 12 these Regulations shall apply to;(e) Interse transfer of shares amongst -(i) group companies, coming within the definition of group as defined in the Monopolies and Restrictive Trade Practices Act, 1969 (25 of 1969)".e IFP family if any would be nothing more than such a group. Furthermore, it is abundantly clear that even the name of SEAMEC does not feature in any of the several reasons put forward by SAT whereas that, as we must emphasise, should have been the primary point of focus. The respondents have sought to adduce further evidence before us to the effect that SEAMEC was in the contemplation of Technip when it purchased Stenas shares in Coflexip. There is no question of allowing any fresh evidence to be adduced at this stage. Besides we do not think that any evidence of mere contemplation of SEAMECs assets would do. That should have been the principal objective in order to trigger the Regulations as it was not the respondents case before SAT that the shareholding of Coflexip in SEAMEC constituted a substantial part of the assets of Coflexip nor has SAT so found. SEBI had noted that the takeover of SEAMEC was only an incidental fall out of the control of Coflexip and that SEAMEC formed a small and insignificant portion of the total business of Coflexip contributing merely 2% of the total asset base of Coflexip as on December, 2000. The finding was not reversed by SAT.
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Lakshmi Narain Agarwal Vs. State Transport Authority, U.P. & Anr | any person without giving him a reasonable opportunity of being heard."5. It would be noticed that sub-sec (3) of Section 47 does not expressly say whether any representations can be made by persons already providing transport facilities or by associations representing persons interested in the provision of the transport facilities or by any local authority or police authority within whose jurisdiction the route or area lies. This is expressly mentioned in Section 47 (1). The learned counsel contends that the expression "matter mentioned in subsection (1) occurring in sub-section (3) refers back not only to matters mentioned in sub-clauses (a) to (f) to sub-section (1) in S. 47 but also the right of representation mentioned in sub-section (1). We are unable to accept this line of reasoning as being sound. Even under Section 47 (1), the Regional Transport Authority can only have regard to the matters mentioned in sub-clauses (a) to (f), and those matters may be brought to the notice of the Regional Transport Authority by representations. It could not have been the intention that representations would contain matters which the Regional Transport Authority could not take into consideration under Section 47 (1). This is not to say that the matters mentioned in subclauses (a) to (f) are exhaustive but this point does not arise and we need not say anything as to this. Therefore, this line of reasoning does not assist the appellant.6. This Court in Abdul Mateen v. Ram Kailash Pandey, (1963) 3 SCR 523 = (AIR 1963 SC 64 ) held that:"where a limit has been fixed under Section 47 (3) by the Regional Transport Authority and thereafter the said authority proceeds to consider applications for permits under Section 48 read with Section 57, the Regional Transport Authority must confine the number of permit issued by it to those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the limits fixed under Section 47 (3)".But this Court did not feel it necessary to decide whether under Section 64-A inserted by Motor Vehicles (Amendment) Act No. 100 of 1956, it was open to the State Transport Authority to vary a general order passed under Sec. 47(3).If we look at the section, it would be noticed that Section 64-A is very wide in terms; the only condition necessary for filing a revision is that it should be against an order made by the Regional Transport Authority and against which no appeal lies. The word order" is wide, and there is no doubt that an order made under Section 47 (3) is an order within Section 64-A because, as held by this Court in (l963) 3 SCR 523 = (AIR 1963 SC 64 ), it binds the Regional Transport Authority and the State Transport Authority in dealing with applications under Sec 48 read with Section 57 of the Act.7. Mr. Sarjoo Prasad, the learned counsel for the State, contends that no revision lies at the instance of an existing operator because he cannot be called an aggrieved person, and secondly, that even if a revision lies, the appellant is not entitled to any relief on the facts of this case, under Article l36 of the Constitution, because the appellant never approached the Regional Transport Authority in the first instance.We are unable to say that no existing operator can be aggrieved by an order made under Section 47 (3), increasing or decreasing the number of stage carriages; it would depend on the facts and circumstances of each case. In a particular case it may be to his advantage and he then would not file a revision against it, but if he files a revision when an order made under Section 47 (3) is prejudicial to his interests, there is no ground for denying him the right to approach the revisional authority and seeking its order. An order under Section 47 (3) affects the future working on a route and we are of the view that such an order would have repercussion on the working of the existing operators, whether for their good or not.The High Court, as stated above, was of the view that at the stage of Section 47 (3) existing operators would not be entitled to be heard by the Regional Transport Authority. But assuming that it is so, this does not affect the right of revision conferred by S. 64-A. We need not in this case decide whether it is implied that existing operators would be entitled to be heard by the Regional Transport Authority before an order under Section 47 (3) is made.8. The learned counsel for the respondent further contends that a decision under Section 47 (3) is a tentative decision and can be revised. But assuming that it can be revised by the Regional Transport Authority, till the order is in operation it is binding on everybody and if a revision can be filed against the order under Section 64-A, the aggrieved operator cannot be compelled to approach the Regional Transport Authority first to revise its order. This argument, in a way, concedes that an operator can be a person aggrieved by an order under section 47 (3).9. The learned counsel for the appellant contends that if it is held that a revision lies under Section 64-A against an order passed under Section 47 (3) of the Act, the State Transport Authority should be directed to hear the revision on merits. He says that the High Court had no right to go into the merits of the order itself. Ordinarily what Mr. Desai contends is correct, but here the facts are that the order under Sec. 47 (3) was passed as long ago as November 17 1962. During the last five years demand for stage carriages on this route would have, in the ordinary course, increased by now, and further it has not been shown that the Regional Transport Authority has made any glaring mistake. | 0[ds]We are unable to accept this line of reasoning as being sound. Even under Section 47 (1), the Regional Transport Authority can only have regard to the matters mentioned in sub-clauses (a) to (f), and those matters may be brought to the notice of the Regional Transport Authority by representations. It could not have been the intention that representations would contain matters which the Regional Transport Authority could not take into consideration under Section 47 (1). This is not to say that the matters mentioned in subclauses (a) to (f) are exhaustive but this point does not arise and we need not say anything as to this. Therefore, this line of reasoning does not assist thewe look at the section, it would be noticed that Section 64-A is very wide in terms; the only condition necessary for filing a revision is that it should be against an order made by the Regional Transport Authority and against which no appeal lies. The word order" is wide, and there is no doubt that an order made under Section 47 (3) is an order within Section 64-A because, as held by this Court in (l963) 3 SCR 523 = (AIR 1963 SC 64 ), it binds the Regional Transport Authority and the State Transport Authority in dealing with applications under Sec 48 read with Section 57We are unable to say that no existing operator can be aggrieved by an order made under Section 47 (3), increasing or decreasing the number of stage carriages; it would depend on the facts and circumstances of each case. In a particular case it may be to his advantage and he then would not file a revision against it, but if he files a revision when an order made under Section 47 (3) is prejudicial to his interests, there is no ground for denying him the right to approach the revisional authority and seeking its order. An order under Section 47 (3) affects the future working on a route and we are of the view that such an order would have repercussion on the working of the existing operators, whether for their good or not.The High Court, as stated above, was of the view that at the stage of Section 47 (3) existing operators would not be entitled to be heard by the Regional Transport Authority. But assuming that it is so, this does not affect the right of revision conferred by S. 64-A. We need not in this case decide whether it is implied that existing operators would be entitled to be heard by the Regional Transport Authority before an order under Section 47 (3) isassuming that it can be revised by the Regional Transport Authority, till the order is in operation it is binding on everybody and if a revision can be filed against the order under Section 64-A, the aggrieved operator cannot be compelled to approach the Regional Transport Authority first to revise its order. This argument, in a way, concedes that an operator can be a person aggrieved by an order under section 47what Mr. Desai contends is correct, but here the facts are that the order under Sec. 47 (3) was passed as long ago as November 17 1962. During the last five years demand for stage carriages on this route would have, in the ordinary course, increased by now, and further it has not been shown that the Regional Transport Authority has made any glaring mistake. | 0 | 2,166 | 646 | ### Instruction:
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any person without giving him a reasonable opportunity of being heard."5. It would be noticed that sub-sec (3) of Section 47 does not expressly say whether any representations can be made by persons already providing transport facilities or by associations representing persons interested in the provision of the transport facilities or by any local authority or police authority within whose jurisdiction the route or area lies. This is expressly mentioned in Section 47 (1). The learned counsel contends that the expression "matter mentioned in subsection (1) occurring in sub-section (3) refers back not only to matters mentioned in sub-clauses (a) to (f) to sub-section (1) in S. 47 but also the right of representation mentioned in sub-section (1). We are unable to accept this line of reasoning as being sound. Even under Section 47 (1), the Regional Transport Authority can only have regard to the matters mentioned in sub-clauses (a) to (f), and those matters may be brought to the notice of the Regional Transport Authority by representations. It could not have been the intention that representations would contain matters which the Regional Transport Authority could not take into consideration under Section 47 (1). This is not to say that the matters mentioned in subclauses (a) to (f) are exhaustive but this point does not arise and we need not say anything as to this. Therefore, this line of reasoning does not assist the appellant.6. This Court in Abdul Mateen v. Ram Kailash Pandey, (1963) 3 SCR 523 = (AIR 1963 SC 64 ) held that:"where a limit has been fixed under Section 47 (3) by the Regional Transport Authority and thereafter the said authority proceeds to consider applications for permits under Section 48 read with Section 57, the Regional Transport Authority must confine the number of permit issued by it to those limits and on an appeal or revision by an aggrieved person, the Appellate Authority or the Revisional Authority must equally be confined to the issue of permits within the limits fixed under Section 47 (3)".But this Court did not feel it necessary to decide whether under Section 64-A inserted by Motor Vehicles (Amendment) Act No. 100 of 1956, it was open to the State Transport Authority to vary a general order passed under Sec. 47(3).If we look at the section, it would be noticed that Section 64-A is very wide in terms; the only condition necessary for filing a revision is that it should be against an order made by the Regional Transport Authority and against which no appeal lies. The word order" is wide, and there is no doubt that an order made under Section 47 (3) is an order within Section 64-A because, as held by this Court in (l963) 3 SCR 523 = (AIR 1963 SC 64 ), it binds the Regional Transport Authority and the State Transport Authority in dealing with applications under Sec 48 read with Section 57 of the Act.7. Mr. Sarjoo Prasad, the learned counsel for the State, contends that no revision lies at the instance of an existing operator because he cannot be called an aggrieved person, and secondly, that even if a revision lies, the appellant is not entitled to any relief on the facts of this case, under Article l36 of the Constitution, because the appellant never approached the Regional Transport Authority in the first instance.We are unable to say that no existing operator can be aggrieved by an order made under Section 47 (3), increasing or decreasing the number of stage carriages; it would depend on the facts and circumstances of each case. In a particular case it may be to his advantage and he then would not file a revision against it, but if he files a revision when an order made under Section 47 (3) is prejudicial to his interests, there is no ground for denying him the right to approach the revisional authority and seeking its order. An order under Section 47 (3) affects the future working on a route and we are of the view that such an order would have repercussion on the working of the existing operators, whether for their good or not.The High Court, as stated above, was of the view that at the stage of Section 47 (3) existing operators would not be entitled to be heard by the Regional Transport Authority. But assuming that it is so, this does not affect the right of revision conferred by S. 64-A. We need not in this case decide whether it is implied that existing operators would be entitled to be heard by the Regional Transport Authority before an order under Section 47 (3) is made.8. The learned counsel for the respondent further contends that a decision under Section 47 (3) is a tentative decision and can be revised. But assuming that it can be revised by the Regional Transport Authority, till the order is in operation it is binding on everybody and if a revision can be filed against the order under Section 64-A, the aggrieved operator cannot be compelled to approach the Regional Transport Authority first to revise its order. This argument, in a way, concedes that an operator can be a person aggrieved by an order under section 47 (3).9. The learned counsel for the appellant contends that if it is held that a revision lies under Section 64-A against an order passed under Section 47 (3) of the Act, the State Transport Authority should be directed to hear the revision on merits. He says that the High Court had no right to go into the merits of the order itself. Ordinarily what Mr. Desai contends is correct, but here the facts are that the order under Sec. 47 (3) was passed as long ago as November 17 1962. During the last five years demand for stage carriages on this route would have, in the ordinary course, increased by now, and further it has not been shown that the Regional Transport Authority has made any glaring mistake.
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We are unable to accept this line of reasoning as being sound. Even under Section 47 (1), the Regional Transport Authority can only have regard to the matters mentioned in sub-clauses (a) to (f), and those matters may be brought to the notice of the Regional Transport Authority by representations. It could not have been the intention that representations would contain matters which the Regional Transport Authority could not take into consideration under Section 47 (1). This is not to say that the matters mentioned in subclauses (a) to (f) are exhaustive but this point does not arise and we need not say anything as to this. Therefore, this line of reasoning does not assist thewe look at the section, it would be noticed that Section 64-A is very wide in terms; the only condition necessary for filing a revision is that it should be against an order made by the Regional Transport Authority and against which no appeal lies. The word order" is wide, and there is no doubt that an order made under Section 47 (3) is an order within Section 64-A because, as held by this Court in (l963) 3 SCR 523 = (AIR 1963 SC 64 ), it binds the Regional Transport Authority and the State Transport Authority in dealing with applications under Sec 48 read with Section 57We are unable to say that no existing operator can be aggrieved by an order made under Section 47 (3), increasing or decreasing the number of stage carriages; it would depend on the facts and circumstances of each case. In a particular case it may be to his advantage and he then would not file a revision against it, but if he files a revision when an order made under Section 47 (3) is prejudicial to his interests, there is no ground for denying him the right to approach the revisional authority and seeking its order. An order under Section 47 (3) affects the future working on a route and we are of the view that such an order would have repercussion on the working of the existing operators, whether for their good or not.The High Court, as stated above, was of the view that at the stage of Section 47 (3) existing operators would not be entitled to be heard by the Regional Transport Authority. But assuming that it is so, this does not affect the right of revision conferred by S. 64-A. We need not in this case decide whether it is implied that existing operators would be entitled to be heard by the Regional Transport Authority before an order under Section 47 (3) isassuming that it can be revised by the Regional Transport Authority, till the order is in operation it is binding on everybody and if a revision can be filed against the order under Section 64-A, the aggrieved operator cannot be compelled to approach the Regional Transport Authority first to revise its order. This argument, in a way, concedes that an operator can be a person aggrieved by an order under section 47what Mr. Desai contends is correct, but here the facts are that the order under Sec. 47 (3) was passed as long ago as November 17 1962. During the last five years demand for stage carriages on this route would have, in the ordinary course, increased by now, and further it has not been shown that the Regional Transport Authority has made any glaring mistake.
|
State of M.P. and Anr Vs. Bharat Singh | At p. 188, Dicey points out:"In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest of temporary imprisonment of expulsion from its territory, and the like than is either legally claimed or in fact exerted by the Government in England: and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects." We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. 8. Counsel for the State relied upon the terms of Art. 162 of the Constitution, and the decision of this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225 : (AIR 1955 SC 549 ), in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate or the subject in respect of which action is taken. Article 162 provide that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise. Counsel for the State, however, strongly relied upon the observations of Mukherjea, C. J., in Ram Jawaya Kapurs case, 1955-2 SCR 225 : (AIR 1955 SC 549 )."They do not mean, * * * that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Art. 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already" These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. 9. We are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation. 10. | 0[ds]By Cl. (ii) of the order the respondent was required to reside within the municipal limits of Jhabua town after proceeding to that place on receipt of the order. Under Cl. (b) of S. 3 (1) the State is authorised to order a person to reside in the place where he is ordinarily residing and also to require him to go to any other area or place within the State and stay in that area or place. If the person so ordered fails to carry out the direction. he may be removed to the area or place designated and may also be punished with imprisonment for a term which may extend to one year, or with fine, or with both. The Act it may be noticed does not give any opportunity to the person concerned of being heard before the place where he is to reside or remain in is selected. The place selected may be one in which the person concerned may have no residential accommodation, and no means of subsistence. It may not be possible for the person concerned to honestly secure the means of subsistence in the place selected. Section 3 (1) (b) of the Act does not indicate the extent of the place or the area, its distance from the residence of the person extended and whether it may be habitated or inhabitated: the clause also nowhere provides that the person directed to be removed shall be provided with any residence, maintenance or means of livelihood in the place selected. In the circumstances we agree with the High Court that Cl. (b) authorised the imposition of unreasonable restrictions insofar as it required any persons to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the orderIn our judgment this argument involves grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority. i.e.. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people: (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial - each organ having some check direct or indirect on the other and (3) the rule of law which includes judicial review of arbitrary executive actionCounsel for the State while conceding that if S. 3 (1) (b) was because it infringed the fundamental freedom of citizens void before the proclamation of emergency and that it was not revived by the proclamation submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore, any executive action taken by an officer of the State or by the State will not be liable to he challenged on the ground that it infringes the fundamental freedoms under Art. 19The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issuedWe are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation. | 0 | 3,587 | 1,292 | ### Instruction:
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At p. 188, Dicey points out:"In almost every continental community the executive exercises far wider discretionary authority in the matter of arrest of temporary imprisonment of expulsion from its territory, and the like than is either legally claimed or in fact exerted by the Government in England: and a study of European politics now and again reminds English readers that wherever there is discretion there is room for arbitrariness, and that in a republic no less than under a monarchy discretionary authority on the part of the Government must mean insecurity for legal freedom on the part of its subjects." We have adopted under our Constitution not the continental system but the British system under which the rule of law prevails. Every Act done by the Government or by its officers must, if it is to operate to the prejudice of any person, be supported by some legislative authority. 8. Counsel for the State relied upon the terms of Art. 162 of the Constitution, and the decision of this Court in Ram Jawaya Kapur v. State of Punjab, 1955-2 SCR 225 : (AIR 1955 SC 549 ), in support of the contention that it is open to the State to issue executive orders even if there is no legislation in support thereof provided the State could legislate or the subject in respect of which action is taken. Article 162 provide that subject to the provisions of the Constitution, the executive power of a State shall extend to the matters with respect to which the Legislature of the State has power to make laws. But Art. 162 and Art. 73 are concerned primarily with the distribution of executive power between the Union on the one hand and the States on the other, and not with the validity of its exercise. Counsel for the State, however, strongly relied upon the observations of Mukherjea, C. J., in Ram Jawaya Kapurs case, 1955-2 SCR 225 : (AIR 1955 SC 549 )."They do not mean, * * * that it is only when the Parliament or the State Legislature has legislated on certain items appertaining to their respective lists, that the Union or the State executive, as the case may be, can proceed to function in respect to them. On the other hand, the language of Art. 162 clearly indicates that the powers of the State executive do extend to matters upon which the State Legislature is competent to legislate and are not confined to matters over which legislation has been passed already" These observations must be read in the light of the facts of the case. The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issued. 9. We are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation. 10.
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place selected. Section 3 (1) (b) of the Act does not indicate the extent of the place or the area, its distance from the residence of the person extended and whether it may be habitated or inhabitated: the clause also nowhere provides that the person directed to be removed shall be provided with any residence, maintenance or means of livelihood in the place selected. In the circumstances we agree with the High Court that Cl. (b) authorised the imposition of unreasonable restrictions insofar as it required any persons to reside or remain in such place or within such area in Madhya Pradesh as may be specified in the orderIn our judgment this argument involves grave fallacy. All executive action which operates to the prejudice of any person must have the authority of law to support it, and the terms of Art. 358 do not detract from that rule. Article 358 expressly authorises the State to take legislative or executive action provided such action was competent for the State to make or take but for the provisions contained in Part III of the Constitution. Article 358 does not purport to invest the State with arbitrary authority to take action to the prejudice of citizens and others: it merely provides that so long as the proclamation of emergency subsists laws may be enacted and executive action may be taken in pursuance of lawful authority which if the provisions of Art. 19 were operative would have been invalid. Our federal structure is founded on certain fundamental principles: (1) the sovereignty of the people with limited Government authority. i.e.. the Government must be conducted in accordance with the will of the majority of the people. The people govern themselves through their representatives, whereas the official agencies of the executive Government possess only such powers as have been conferred upon them by the people: (2) There is distribution of powers between the three organs of the State-legislative, executive and judicial - each organ having some check direct or indirect on the other and (3) the rule of law which includes judicial review of arbitrary executive actionCounsel for the State while conceding that if S. 3 (1) (b) was because it infringed the fundamental freedom of citizens void before the proclamation of emergency and that it was not revived by the proclamation submitted that Art. 358 protects action both legislative and executive taken after proclamation of emergency and therefore, any executive action taken by an officer of the State or by the State will not be liable to he challenged on the ground that it infringes the fundamental freedoms under Art. 19The executive action which was upheld in that case was, it is true, not supported by legislation, but it did not operate to the prejudice of any citizen. In the State of Punjab prior to 1950 the text books used in recognized school, were prepared by private publishers and they were submitted for approval of the Government. In 1950 the State Government published text books in certain subjects and in other subjects the State Government approved text books submitted by publishers and authors. In 1952 a notification was issued by the Government inviting only authors and others" to submit text books for approval by the Government. Under agreement with the authors and others the copyright in the text books vested absolutely in the State and the authors and others received royalty on the sale of those text books. The petitioners - a firm carrying on the business of preparing printing publishing and selling text books - then moved this Court under Art. 32 of the Constitution praying for writs of mandamus directing the Punjab Government to withdraw the notifications of 1950 and 1952 on the ground that they contravened the fundamental rights of the petitioners guaranteed under the Constitution. It was held by this Court that the action of Government did not amount to infraction of the guarantee under Art. 19 (l) (g) of the Constitution since no fundamental rights of the petitioners were violated by the notifications and the acts of the executive Government done in furtherance of their policy of nationalisation of text books for students. It is true that the dispute arose before the Constitution (Seventh Amendment) Act 1956, amending inter alia, Art. 298 was enacted and there was no legislation authorising the State Government to enter the field of business of printing, publishing and selling text books. It was contended in support of the petition in Ram Jawayas case, 1955-2 SCR 225 : (AIR 1955 SC 549 ) that without legislative authority the Government of the State could not enter the business of printing publishing and selling text books. The Court held that by the action of the Government no rights of the petitioners were infringed since a mere chance or prospect of having particular customers cannot be said to be a right to property or to any interest or undertaking, it is clear that the State of Punjab had done no act which infringed a right of any citizen: the State had merely entered upon a trading venture. By entering into competition with the citizens it did not infringe their rights. Viewed in the light of these facts the observations relied upon do not support the contention that the State or its officers may in exercise of executive authority infringe the rights of the citizens merely because the Legislature of the State has the power to legislate in regard to the subject on which the executive order is issuedWe are therefore of the view that the order made by the State in exercise of the authority conferred by S. 3 (1) (b) of the Madhya Pradesh Public Security Act 25 of 1959 was invalid and for the acts gone to the prejudice of the respondent after the declaration of emergency under Art. 352 no immunity from the process of the Court could be claimed under Art. 358 of the Constitution, since the order was not supported by any valid legislation.
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Commissioner of Central Excise Vs. M/s. Tubes & Structurals & Another | goods. Armed with the aforesaid authorisation the respondent has been receiving orders from various parties to manufacture and supply it to them the Steel Cog Stools with the patent design for which authorisation is given by TISCO Ltd.5. The respondent did not pay any excise duty on the premise that it was entitled to the exemption under the aforesaid Notification. When the show cause notice was issued to the respondent to pay the excise duty, defence of the respondent was that the respondent was not affixing the said brand name TISCOG on the goods which were supplied by respondent to the parties from which he received the orders. It was stated that such a name was mentioned only in the invoices which were raised by the respondent. As mentioned above, this contention was not accepted by the Commissioner in his order.6. However, in appeal filed before the CEGAT, CEGAT has accepted the aforesaid plea of the respondent resulting into the quashing of the impugned demand as well as the penalties. Therefore, the only issue which is to be determined by this Court is as to whether non-fixing of the brand name on the goods would take the respondent out of the clutches of para 4 of the exemption Notification No.1/93. 7. This issue, on the facts of the present case as noted above, is not more than res integra and has been settled by few judgments of this Court. It is not necessary to refer to all those judgments. Our purpose would be served in mentioning the judgment titled Commissioner of Central Excise, Chennai-II v. Australian Foods India (P) Ltd. (2013) 287 E.L.T. 385 (SC). In the said case the Court took note of the original para 4 in Notification No.1/93 dated 28.2.1993 where the words mentioned are "the exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person." 8. This para 4 was amended vide Notification No. 59/94-CE dated 1.3.1994 and the word "affixes" was substituted by the word "bearing". The reason for this substitution is explained in para (iii) of para J of the changes 1994-95 dealt with "changes in the SSI scheme",.This is so stated in para 10 of the said judgment which we reproduce below for the sake of clarification: "10. Part (iii) of Para J of the Budget Changes-1994-95 dealt with "Changes in the SSI schemes" explains the purpose of the amendment in the following words:"(iii) Brand name provision has been amended so as to provide that SSI concession shall not apply to the goods bearing the brand name or trade name of another person. The effect of this amendment is that if an SSI unit manufactures the branded goods for another person irrespective of whether the brand name owner himself is SSI unit or not, such goods shall not be eligible for the concession. Another implication of this amendment is that the requirement of affixation or brand name by the SSI unit has been changed and now the only condition is that the goods cleared by SSI unit bearing a brand name of another person shall not be eligible for the concession irrespective of the fact whether the brand name was affixed by the SSI unit or that, the input material used by the SSI unit was already affixed with brand name." 9. It becomes clear from the reading of the aforesaid paras that amendment in para 4 in the manner mentioned above was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing". Going by the aforesaid consideration this Court held in Australian Foods (India) (P) Ltd. case that after this amendment in para 4 it was not necessary that there has to be affixation of the name or mark on the goods.10. Applying the ratio of this case to the facts of the present case, the irresistible conclusion is to hold that the impugned order of the CEGAT is untenable and not in accordance with law. We may mention that while giving its decision the CEGAT has gone by the unamended para 4 without taking into consideration the amended para and the implication thereof.11. At this stage we would like to deal with another contention of the learned counsel for the respondent. He submits that even if the demand of duty is to be upheld, it is not a case where the Revenue Authorities could have imposed penalty under the provisions of Sec.11A(C) of the Act. For this purpose he has drawn our attention to various orders passed by the Tribunal, even after amendment in para 4, taking the view that unless there is affixation of the brand name on the goods itself, a small scale industry would be entitled to the benefit of the aforesaid Notification. He has also referred the judgment of this Court in Commissioner of Central Excise, Jamshedpur v. Superex Industries, Bihar (2005) 4 SCC 207 wherein similar order passed by the Tribunal was upheld by this Court, albeit keeping in view the provisions of the unamended para 4.12. In view of the aforesaid, we are of the opinion that the non-payment of duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods. We, thus, find force in this submission of the learned counsel for the respondent. Therefore, while setting aside the order of the Tribunal, we restore the order of the Commissioner only insofar as it pertains to imposition of excise duty in the sum of L 34,67,164/- and set aside the penalties imposed in the said order. | 1[ds]9. It becomes clear from the reading of the aforesaid paras that amendment in para 4 in the manner mentioned above was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing". Going by the aforesaid consideration this Court held in Australian Foods (India) (P) Ltd. case that after this amendment in para 4 it was not necessary that there has to be affixation of the name or mark on the goods.10. Applying the ratio of this case to the facts of the present case, the irresistible conclusion is to hold that the impugned order of the CEGAT is untenable and not in accordance with law. We may mention that while giving its decision the CEGAT has gone by the unamended para 4 without taking into consideration the amended para and the implication thereof.11. At this stage we would like to deal with another contention of the learned counsel for the respondent. He submits that even if the demand of duty is to be upheld, it is not a case where the Revenue Authorities could have imposed penalty under the provisions of Sec.11A(C) of the Act. For this purpose he has drawn our attention to various orders passed by the Tribunal, even after amendment in para 4, taking the view that unless there is affixation of the brand name on the goods itself, a small scale industry would be entitled to the benefit of the aforesaid Notification. He has also referred the judgment of this Court in Commissioner of Central Excise, Jamshedpur v. Superex Industries, Bihar (2005) 4 SCC 207 wherein similar order passed by the Tribunal was upheld by this Court, albeit keeping in view the provisions of the unamended para 4.12. In view of the aforesaid, we are of the opinion that theof duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods. We, thus, find force in this submission of the learned counsel for the respondent. Therefore, while setting aside the order of the Tribunal, we restore the order of the Commissioner only insofar as it pertains to imposition of excise duty in the sum of L 34,67,164/and set aside the penalties imposed in the said order.This issue, on the facts of the present case as noted above, is not more than res integra and has been settled by few judgments of this Court. It is not necessary to refer to all those judgments. Our purpose would be served in mentioning the judgment titled Commissioner of Central Excise,v. Australian Foods India (P) Ltd. (2013) 287 E.L.T. 385 (SC). In the said case the Court took note of the original para 4 in Notification No.1/93 dated 28.2.1993 where the words mentioned are "the exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person." | 1 | 1,645 | 609 | ### Instruction:
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goods. Armed with the aforesaid authorisation the respondent has been receiving orders from various parties to manufacture and supply it to them the Steel Cog Stools with the patent design for which authorisation is given by TISCO Ltd.5. The respondent did not pay any excise duty on the premise that it was entitled to the exemption under the aforesaid Notification. When the show cause notice was issued to the respondent to pay the excise duty, defence of the respondent was that the respondent was not affixing the said brand name TISCOG on the goods which were supplied by respondent to the parties from which he received the orders. It was stated that such a name was mentioned only in the invoices which were raised by the respondent. As mentioned above, this contention was not accepted by the Commissioner in his order.6. However, in appeal filed before the CEGAT, CEGAT has accepted the aforesaid plea of the respondent resulting into the quashing of the impugned demand as well as the penalties. Therefore, the only issue which is to be determined by this Court is as to whether non-fixing of the brand name on the goods would take the respondent out of the clutches of para 4 of the exemption Notification No.1/93. 7. This issue, on the facts of the present case as noted above, is not more than res integra and has been settled by few judgments of this Court. It is not necessary to refer to all those judgments. Our purpose would be served in mentioning the judgment titled Commissioner of Central Excise, Chennai-II v. Australian Foods India (P) Ltd. (2013) 287 E.L.T. 385 (SC). In the said case the Court took note of the original para 4 in Notification No.1/93 dated 28.2.1993 where the words mentioned are "the exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person." 8. This para 4 was amended vide Notification No. 59/94-CE dated 1.3.1994 and the word "affixes" was substituted by the word "bearing". The reason for this substitution is explained in para (iii) of para J of the changes 1994-95 dealt with "changes in the SSI scheme",.This is so stated in para 10 of the said judgment which we reproduce below for the sake of clarification: "10. Part (iii) of Para J of the Budget Changes-1994-95 dealt with "Changes in the SSI schemes" explains the purpose of the amendment in the following words:"(iii) Brand name provision has been amended so as to provide that SSI concession shall not apply to the goods bearing the brand name or trade name of another person. The effect of this amendment is that if an SSI unit manufactures the branded goods for another person irrespective of whether the brand name owner himself is SSI unit or not, such goods shall not be eligible for the concession. Another implication of this amendment is that the requirement of affixation or brand name by the SSI unit has been changed and now the only condition is that the goods cleared by SSI unit bearing a brand name of another person shall not be eligible for the concession irrespective of the fact whether the brand name was affixed by the SSI unit or that, the input material used by the SSI unit was already affixed with brand name." 9. It becomes clear from the reading of the aforesaid paras that amendment in para 4 in the manner mentioned above was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing". Going by the aforesaid consideration this Court held in Australian Foods (India) (P) Ltd. case that after this amendment in para 4 it was not necessary that there has to be affixation of the name or mark on the goods.10. Applying the ratio of this case to the facts of the present case, the irresistible conclusion is to hold that the impugned order of the CEGAT is untenable and not in accordance with law. We may mention that while giving its decision the CEGAT has gone by the unamended para 4 without taking into consideration the amended para and the implication thereof.11. At this stage we would like to deal with another contention of the learned counsel for the respondent. He submits that even if the demand of duty is to be upheld, it is not a case where the Revenue Authorities could have imposed penalty under the provisions of Sec.11A(C) of the Act. For this purpose he has drawn our attention to various orders passed by the Tribunal, even after amendment in para 4, taking the view that unless there is affixation of the brand name on the goods itself, a small scale industry would be entitled to the benefit of the aforesaid Notification. He has also referred the judgment of this Court in Commissioner of Central Excise, Jamshedpur v. Superex Industries, Bihar (2005) 4 SCC 207 wherein similar order passed by the Tribunal was upheld by this Court, albeit keeping in view the provisions of the unamended para 4.12. In view of the aforesaid, we are of the opinion that the non-payment of duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods. We, thus, find force in this submission of the learned counsel for the respondent. Therefore, while setting aside the order of the Tribunal, we restore the order of the Commissioner only insofar as it pertains to imposition of excise duty in the sum of L 34,67,164/- and set aside the penalties imposed in the said order.
### Response:
1
### Explanation:
9. It becomes clear from the reading of the aforesaid paras that amendment in para 4 in the manner mentioned above was brought to deny the benefit of Notification to those SSI units which have been making use of branded good for another person irrespective of whether the brand name owner himself is SSI unit or not. It was also made abundantly clear here that the requirement of affixation or brand name by the SSI unit was immaterial. That was the purpose for substituting the word "affixing" by the word "bearing". Going by the aforesaid consideration this Court held in Australian Foods (India) (P) Ltd. case that after this amendment in para 4 it was not necessary that there has to be affixation of the name or mark on the goods.10. Applying the ratio of this case to the facts of the present case, the irresistible conclusion is to hold that the impugned order of the CEGAT is untenable and not in accordance with law. We may mention that while giving its decision the CEGAT has gone by the unamended para 4 without taking into consideration the amended para and the implication thereof.11. At this stage we would like to deal with another contention of the learned counsel for the respondent. He submits that even if the demand of duty is to be upheld, it is not a case where the Revenue Authorities could have imposed penalty under the provisions of Sec.11A(C) of the Act. For this purpose he has drawn our attention to various orders passed by the Tribunal, even after amendment in para 4, taking the view that unless there is affixation of the brand name on the goods itself, a small scale industry would be entitled to the benefit of the aforesaid Notification. He has also referred the judgment of this Court in Commissioner of Central Excise, Jamshedpur v. Superex Industries, Bihar (2005) 4 SCC 207 wherein similar order passed by the Tribunal was upheld by this Court, albeit keeping in view the provisions of the unamended para 4.12. In view of the aforesaid, we are of the opinion that theof duty by the respondent was bona fide act, having nurtured a belief that it was not liable to pay the excise duty on the goods. We, thus, find force in this submission of the learned counsel for the respondent. Therefore, while setting aside the order of the Tribunal, we restore the order of the Commissioner only insofar as it pertains to imposition of excise duty in the sum of L 34,67,164/and set aside the penalties imposed in the said order.This issue, on the facts of the present case as noted above, is not more than res integra and has been settled by few judgments of this Court. It is not necessary to refer to all those judgments. Our purpose would be served in mentioning the judgment titled Commissioner of Central Excise,v. Australian Foods India (P) Ltd. (2013) 287 E.L.T. 385 (SC). In the said case the Court took note of the original para 4 in Notification No.1/93 dated 28.2.1993 where the words mentioned are "the exemption contained in this Notification shall not apply to the specified goods, bearing a brand name or trade name (registered or not) of another person."
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SESH NATH SINGH & ANR Vs. BAIDYABATI SHEORAPHULI CO-OPERATIVE BANK LTD AND ANR | of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,— (a) declare the recourse to any one or more measures referred to in sub- section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt. (4A) Where— (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,— (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under subsection (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. 18. Appeal to Appellate Tribunal.—(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed]to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso. (2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder. 99. The Chief Metropolitan Magistrate or the Judicial Magistrate, as the case may be, exercising powers under Section 14 of the SARFAESI Act, functions as a Civil Court/Executing Court. Proceedings under the SARFAESI Act would, therefore, be deemed to be civil proceedings in a Court. Moreover, proceedings under the SARFAESI Act under Section 13(4) are appealable to the DRT under Section 18 of the SARFAESI Act. Mr. Daves argument that proceedings under the SARFAESI Act would not qualify for exclusion under Section 14 of the Limitation Act, because those proceedings were not conducted in a Civil Court, cannot be sustained. 100. Another civil proceeding whether in a Court of first instance or of appeal or revision, against the party, for the same relief, would have to be construed to include any civil Proceeding in a forum, whether of first instance, or appellate, or revisional, against the same party for similar relief, more so, having regard to the language and tenor of Section 238A of the Limitation Act which applies the provisions of the Limitation Act as far as may be, to proceedings in the NCLT/NCLAT. 101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression Court in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act. 102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing sufficient cause. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay. | 0[ds]38. A financial creditor may either by itself or jointly with other financial creditors, as may be notified by the Government, file an application for initiation of the corporate insolvency resolution process against a corporate debtor before the Adjudicating Authority, when a default has occurred. The trigger point for an application under Section 7 of the IBC is the occurrence of a default. The restrictions stipulated in the three provisos to Section 7 are not applicable in this case.39. As observed by this Court (Rohinton Nariman, J.) in Innoventive Industries Limited v. ICICI Bank and Another (2018) 1 SCC 407, the scheme of the IBC is to ensure that when a default takes place, in the sense that the debt becomes due and is not paid, the insolvency resolution process begins. Default is defined in Section 3(12) in very wide terms as meaning non-payment of a debt, once it becomes due and payable, which includes non-payment of even part thereof or an instalment amount. The Code gets triggered the moment default is of rupees one lakh or more (Section 4).40. In Innoventive Industries Limited (supra), this Court further held that a debt may not be due if it is not payable in law or in fact. In the case of a corporate debtor, who commits a default of a financial debt, the Adjudicating Authority has merely to see the records of the information utility or other evidence produced by the financial creditor, to satisfy itself that a default has occurred. It is of no matter that the debt is disputed, so long as the debt is, due i.e. payable, unless interdicted by some law or has not yet become due in the sense that it is payable at some future date. It is only when this is proved to the satisfaction of the Adjudicating Authority that the Adjudicating Authority may reject an application and not otherwise.41. The judgment of this Court in Mobilox Innovations Private Limited (supra) was rendered in the context of an application for initiation of Corporate Insolvency Resolution Process by an operational creditor, under Section 9 of the IBC.42. Noticing the difference between Section 7 and Section 9 of the IBC, this Court held:-51. It is clear, therefore, that once the operational creditor has filed an application, which is otherwise complete, the adjudicating authority must reject the application under Section 9(5)(2)(d) if notice of dispute has been received by the operational creditor or there is a record of dispute in the information utility. It is clear that such notice must bring to the notice of the operational creditor the existence of a dispute or the fact that a suit or arbitration proceeding relating to a dispute is pending between the parties. Therefore, all that the adjudicating authority is to see at this stage is whether there is a plausible contention which requires further investigation and that the dispute is not a patently feeble legal argument or an assertion of fact unsupported by evidence. It is important to separate the grain from the chaff and to reject a spurious defence which is mere bluster. However, in doing so, the Court does not need to be satisfied that the defence is likely to succeed. The Court does not at this stage examine the merits of the dispute except to the extent indicated above. So long as a dispute truly exists in fact and is not spurious, hypothetical or illusory, the adjudicating authority has to reject the application.44. Under Section 9(5)(i)(d) of the IBC, the Adjudicating Authority has to reject an application made by an operational creditor, if notice of dispute has been received by the operational creditor and there is no record of dispute in the information utility. There is no such provision in section 7 of the IBC.46. In K. Venkateswara Rao And Anr. v. Bekkam Narasimha Reddi & Ors AIR 1969 SC 872 , this Court held that the Limitation Act did not apply to an election petition under the Representation of People Act, 1950, which is a complete Code. In Nityananda M. Joshi and Others v. The Life Insurance Corporation of India and others (1969) 2 SCC 199, a three Judge Bench of this Court speaking through Sikri, J. held that Article 137 of the Limitation Act only contemplates applications to Courts.49. The language and tenor of Section 238A is significant. The Section reads that the provisions of the Limitation Act, 1963 shall, as far as may be, apply to proceedings or appeals inter alia before the NCLT/NCLAT.50. Section 238 gives overriding effect to the IBC, notwithstanding anything inconsistent therewith contained in any other law, for the time being in force, or any instrument having effect, by virtue of any such law.51. There is no specific period of limitation prescribed in the Limitation Act, 1963 for an application under the IBC before the NCLT. An application for which no period of limitation is provided anywhere else in the Schedule, is governed by Article 137 of the Schedule to the Limitation Act. Under Article 137 of the Schedule to the Limitation Act, the period of limitation prescribed for such an application is three years from the date of accrual of the right to apply.52. There can be no dispute with the proposition that the period of limitation for making an application under Section 7 or 9 of the IBC is three years from the date of accrual of the right to sue, that is, the date of default. In Gaurav Hargovindbhai Dave v. Asset Reconstruction Company (India) Ltd. And Anr. (2019) 10 SCC 572, this Court held:-6. …...The present case being an application which is filed under Section 7, would fall only within the residuary Article 137.53. Section 5 of the Limitation Act provides that any appeal or any application, other than an application under any of the provisions of Order XXI of the Code of Civil Procedure, 1908, may be admitted after the prescribed period of limitation, if the appellant or the applicant satisfies the Court, that he had sufficient cause for not preferring the appeal or making the application within such period. The explanation in Section 5 of the Limitation Act clarifies that, the fact that the appellant or the applicant may have been misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period, may be sufficient cause within the meaning of this Section.54. In B.K. Educational Services Private Limited v. Parag Gupta and Associates (2019) 11 SCC 633, this Court held:-42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the in- ception of the Code, Article 137 of the Limitation Act gets at- tracted. The right to sue, therefore, accrues when a default oc- curs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.55. In Radha Export (India) Private Limited v. K.P. Jayaram and Anr. (2020) 10 SCC 538, this Court referred to B.K. Educational Services (P) Ltd. v. Parag Gupta & Associates (supra) and held the application under Section 7 of the IBC to be barred by limitation.59. It is well settled by a plethora of judgments of this Court as also different High Courts and, in particular, the judgment of this Court in B.K. Educational Services Private Limited v. Parag Gupta Associates and Ors. (supra) the NCLT/NCLAT has the discre- tion to entertain an application/appeal after the prescribed period of limitation. The condition precedent for exercise of such discretion is the existence of sufficient cause for not preferring the appeal and/or the application within the period prescribed by limitation.60. In Ramlal Motilal and Chhotelal v. Rewa Coalfields Ltd. AIR 1962 SC 361 this Court affirmed the view taken by Madras High Court in Krishna v. Chattappan 1890 ILR Mad 269 and held that Section 5 of the Limitation Act gives the Courts a discretion, which is to be exercised in the way in which judicial power and discretion ought to be exercised, upon principles which are well understood. The expression sufficient cause should be construed liberally to advance substantial justice, as held by this Court, inter alia, in Shakuntla Devi Jain vs. Kuntal Kumar AIR 1969 SC 575 and in State of West Bengal v. Administrator, Howrah Municipality and Others (1972) 1 SCC 366 .61. The condition precedent for condonation of the delay in filing an application or appeal, is the existence of sufficient cause. Whether the explanation furnished for the delay would constitute sufficient cause or not would dependent upon facts of each case. There cannot be any straight jacket formula for accepting or rejecting the explanation furnished by the applicant/appellant for the delay in taking steps. Acceptance of explanation furnished should be the rule and refusal an exception, when no negligence or inaction or want of bona fides can be imputed to the defaulting party.62. It is true that a valuable right may accrue to the other party by the law of limitation, which should not lightly be defeated by condoning delay in a routine manner. At the same time, when stakes are high, the explanation should not be rejected by taking a pedantic and hyper technical view of the matter, causing thereby irreparable loss and injury to the party against whom the lis terminates. The courts are required to strike a balance between the legitimate rights and interests of the respective parties.64. A plain reading of Section 5 of the Limitation Act makes it amply clear that, it is not mandatory to file an application in writing before relief can be granted under the said section. Had such an application been mandatory, Section 5 of the Limitation Act would have expressly provided so. Section 5 would then have read that the Court might condone delay beyond the time prescribed by limitation for filing an application or appeal, if on consideration of the application of the appellant or the applicant, as the case may be, for condonation of delay, the Court is satisfied that the appellant/applicant had sufficient cause for not preferring the appeal or making the application within such period. Alternatively, a proviso or an Explanation would have been added to Section 5, requiring the appellant or the applicant, as the case may be, to make an application for condonation of delay. However, the Court can always insist that an application or an affidavit showing cause for the delay be filed. No applicant or appellant can claim condonation of delay under Section 5 of the Limitation Act as of right, without making an application.67. As observed above, Section 238A of the IBC makes the provisions of the Limitation Act, as far as may be, applicable to pro- ceedings before the NCLT and the NCLAT. The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT/NCLAT. All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible.68. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgment.69. In M/s. Reliance Asset Reconstruction Company Ltd. (supra), the petition under Section 7 of the IBC, filed by the Financial Creditor in July 2018 was found, on facts, to be hopelessly barred by limitation, as the account of the Corporate Debtor had been declared NPA in 1993, after which recovery proceedings had been initiated, a Recovery Certificate issued in 2003 and amended in 2001. This Court found that the documents relied upon by the Financial Creditor to claim the benefit of Section 18 of the Limitation Act, could not be con- strued as admission or acknowledgment of liability.70. Section 14 (2) of the Limitation Act provides that in computing the period of limitation for any application, the time during which the petitioner had been prosecuting, with due diligence, another civil proceeding, whether in a court of first instance, or of appeal or revision, against the same party, for the same relief, shall be excluded, where such proceeding is prosecuted in good faith in a Court which, from defect of jurisdiction or other cause of like nature, is unable to entertain it. The conditions for exclusion are that the earlier proceedings should have been for the same relief, the proceedings should have been prosecuted diligently and in good faith and the proceedings should have been prosecuted in a forum which, from defect of jurisdiction or other cause of a like nature, was unable to entertain it.71. In State of Goa v. Western Builders (2006) 6 SCC 239, this Court held that Section 14 of the Limitation Act would apply to an application for setting aside of an arbitral award under Section 34 of the Arbitration and Conciliation Act, 1996 by virtue of Section 43 of the said Act, which made the Limitation Act applicable to arbitrations as it applies to proceedings in Court. This Court found that in the absence of any provision in the Arbitration and Conciliation Act, 1996 excluding the applicability of Section 14, a party was legitimately entitled to exclusion of the time spent in bona fide prosecution of proceedings with due diligence in a wrong forum. Distinguishing the earlier judgment of this Court in Union of India v. Popular Construction Co. (2001) 8 SCC 470, the Court held that exclusion of time under Section 14 of the Limitation Act in computation of limitation was different from condonation of delay under Section 5 of the said Act.72. In Consolidated Engineering Enterprises v. Principal Secretary, Irrigation Department and Ors. (2008) 7 SCC 169, a three-Judge Bench of this Court unanimously held that in the absence of any provision in the Arbitration and Conciliation Act, 1996 which excluded the applicability of Section 14 of the Limitation Act, there was no reason why Section 14 of the Limitation Act should not apply to an application for setting aside an arbitral award. This Court held:19. A bare reading of sub-section (3) of Section 34 read with the proviso makes it abundantly clear that the application for setting aside the award on the grounds mentioned in sub-section (2) of Section 34 will have to be made within three months. The period can further be extended, on sufficient cause being shown, by another period of 30 days but not thereafter. It means that as far as application for setting aside the award is concerned, the period of limitation prescribed is three months which can be extended by another period of 30 days, on sufficient cause being shown to the satisfaction of the court.20. Section 29(2) of the Limitation Act inter alia provides that where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period of limitation prescribed by the Schedule, the provisions of Section 3 shall apply as if such period was 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 shall apply only insofar as, and to the extent, they are not expressly excluded by such special or local law. When any special statute prescribes certain period of limitation as well as provision for extension up to specified time-limit, on sufficient cause being shown, then the period of limitation prescribed under the special law shall prevail and to that extent the provisions of the Limitation Act shall stand excluded. As the intention of the legislature in enacting sub- section (3) of Section 34 of the Act is that the application for setting aside the award should be made within three months and the period can be further extended on sufficient cause being shown by another period of 30 days but not thereafter, this Court is of the opinion that the provisions of Section 5 of the Limitation Act would not be applicable because the applicability of Section 5 of the Limitation Act stands excluded because of the provisions of Section 29(2) of the Limitation Act. However, merely because it is held that Section 5 of the Limitation Act is not applicable to an application filed under Section 34 of the Act for setting aside an award, one need not conclude that provisions of Section 14 of the Limitation Act would also not be applicable to an application submitted under Section 34 of the Act of 1996.21. Section 14 of the Limitation Act deals with exclusion of time of proceeding bona fide in a court without jurisdiction. On analysis of the said section, it becomes evident that the following conditions must be satisfied before Section 14 can be pressed into service:(1) Both the prior and subsequent proceedings are civil proceedings prosecuted by the same party;(2) The prior proceeding had been prosecuted with due diligence and in good faith;(3) The failure of the prior proceeding was due to defect of jurisdiction or other cause of like nature;(4) The earlier proceeding and the latter proceeding must relate to the same matter in issue and;(5) Both the proceedings are in a court.22. The policy of the section is to afford protection to a litigant against the bar of limitation when he institutes a proceeding which by reason of some technical defect cannot be decided on merits and is dismissed. While considering the provisions of Section 14 of the Limitation Act, proper approach will have to be adopted and the provisions will have to be interpreted so as to advance the cause of justice rather than abort the proceedings. It will be well to bear in mind that an element of mistake is inherent in the invocation of Section 14. In fact, the section is intended to provide relief against the bar of limitation in cases of mistaken remedy or selection of a wrong forum. On reading Section 14 of the Act it becomes clear that the legislature has enacted the said section to exempt a certain period covered by a bona fide litigious activity. Upon the words used in the section, it is not possible to sustain the interpretation that the principle underlying the said section, namely, that the bar of limitation should not affect a person honestly doing his best to get his case tried on merits but failing because the court is unable to give him such a trial, would not be applicable to an application filed under Section 34 of the Act of 1996. The principle is clearly applicable not only to a case in which a litigant brings his application in the court, that is, a court having no jurisdiction to entertain it but also where he brings the suit or the application in the wrong court in consequence of bona fide mistake or (sic of) law or defect of procedure. Having regard to the intention of the legislature this Court is of the firm opinion that the equity underlying Section 14 should be applied to its fullest extent and time taken diligently pursuing a remedy, in a wrong court, should be excluded.73. In his separate concurring judgment Raveendran, J. said:-52. Section 14 of the Limitation Act relates to exclusion of time of proceeding bona fide in court without jurisdiction.53. Sub-section (3) of Section 34 of the AC Act prescribes the period of limitation for filing an application for setting aside an award as three months from the date on which the applicant has received the arbitral award. The proviso thereto vests in the court discretion to extend the period of limitation by a further period not exceeding thirty days if the court is satisfied that the applicant was prevented by sufficient cause for not making the application within three months. The use of the words but not thereafter in the proviso makes it clear that even if a sufficient cause is made out for a longer extension, the extension cannot be beyond thirty days. The purpose of proviso to Section 34(3) of the AC Act is similar to that of Section 5 of the Limitation Act which also relates to extension of the period of limitation prescribed for any application or appeal. It vests a discretion in a court to extend the prescribed period of limitation if the applicant satisfies the court that he had sufficient cause for not making the application within the prescribed period. Section 5 of the Limitation Act does not place any outer limit in regard to the period of extension, whereas the proviso to sub-section (3) of Section 34 of the AC Act places a limit on the period of extension of the period of limitation. Thus the proviso to Section 34(3) of the AC Act is also a provision relating to extension of period of limitation, but differs from Section 5 of the Limitation Act, in regard to period of extension, and has the effect of excluding Section 5 alone of the Limitation Act.74. As held by this Court in Commissioner, M.P. Housing Board and Ors. v. Mohanlal & Co., (2016) 14 SCC 199, Section 14 of the Limitation Act has to be interpreted liberally to advance the cause of justice. Section 14 would be applicable in cases of mistaken remedy or selection of a wrong forum.75. There can be little doubt that Section 14 applies to an application under Section 7 of the IBC. At the cost of repetition, it is reiterated that the IBC does not exclude the operation of Section 14 of the IBC. The question is whether prior proceedings under the SARFAESI Act do not qualify for the exclusion of time under Section 14, inasmuch as they are not civil proceedings in a Court, as argued by Mr. Dave.76. Even if it were to be held that the benefit of Section 14 would be available to an applicant under IBC, for proceedings initiated bona fide and prosecuted with due diligence under the SARFAESI Act, another question raised in this appeal is, whether exclusion of time under Section 14 of the Limitation Act, would only be available if the proceedings which could not be entertained for defect of jurisdiction, or other cause of a like nature, had ended, in view of the Explanation at the end of Section 14, which says that for the purposes of the said Section, the day on which the earlier proceeding was instituted and the day on which it ended shall both be counted for exclusion of time. Much emphasis has been placed by Mr. Dave on the explanation at the end of Section 14, to argue that the Financial Creditor would not be entitled to the benefit of Section 14 of the Limitation Act since the proceedings under the SARFAESI Act are still pending, as also the writ petition in the High Court.77. Section 14 of the Limitation Act is to be read as a whole. A conjoint and careful reading of Sub-Sections (1), (2) and (3) of Section 14 makes it clear that an applicant who has prosecuted another civil proceeding with due diligence, before a forum which is unable to entertain the same on account of defect of jurisdiction or any other cause of like nature, is entitled to exclusion of the time during which the applicant had been prosecuting such proceeding, in computing the period of limitation. The substantive provisions of Sub-sections (1), (2) and (3) of Section 14 do not say that Section 14 can only be invoked on termination of the earlier proceedings, prosecuted in good faith.79. As held in S. Sundaram Pillai and Others v. V.R. Pattabiraman and Others (1985) 1 SCC 591, it is well settled that an explanation added to a statutory provision is not a substantive provision in any sense of the term but is meant to explain or clarify certain ambiguities, which may have crept into statutory provisions.80. In Sundaram Pillai (supra), this Court referred to Sarathis Interpretation of Statutes; Swarups Legislation and Interpretation, Interpretation of statues (5th edition) by Bindra as also various judgments of this Court including those referred to above and held:-53. Thus, from a conspectus of the authorities referred to above, it is manifest that the object of an Explanation to a statutory provision is—(a) to explain the meaning and intendment of the Act itself,(b) where there is any obscurity or vagueness in the main enactment, to clarify the same so as to make it consistent with the dominant object which it seems to subserve,(c) to provide an additional support to the dominant object of the Act in order to make it meaningful and purposeful,(d) an Explanation cannot in any way interfere with or change the enactment or any part thereof but where some gap is left which is relevant for the purpose of the Explanation, in order to suppress the mischief and advance the object of the Act it can help or assist the Court in interpreting the true purport and intendment of the enactment, and(e) it cannot, however, take away a statutory right with which any person under a statute has been clothed or set at naught the working of an Act by becoming an hindrance in the interpretation of the same.81. In our considered view, Explanation (a) cannot be construed in a narrow pedantic manner to mean that Section 14 can never be invoked until and unless the earlier proceedings have actually been terminated for want of jurisdiction or other cause of such nature. Explanation (a), which is clarificatory, only restricts the period of exclusion to the period between the date of initiation and the date of termination. An applicant cannot claim any further exclusion.84. To sum up, Section 14 excludes the time spent in proceeding in a wrong forum, which is unable to entertain the proceedings for want of jurisdiction, or other such cause. Where such proceedings have ended, the outer limit to claim exclusion under Section 14 would be the date on which the proceedings ended.85. In the instant case, the proceedings under the SARFAESI Act may not have formally been terminated. The proceedings have however been stayed by the High Court by an interim order, on the prima facie satisfaction that the proceedings initiated by the financial creditor, which is a cooperative bank, was without jurisdiction. The writ petition filed by the Corporate Debtor was not disposed of even after almost four years. The carriage of proceedings was with the Corporate Debtor. The interim order was still in force, when proceedings under Section 7 of the IBC were initiated, as a result of which the Financial Creditor was unable to proceed further under the SARFAESI Act.86. In the instant case, even if it is assumed that the right to sue accrued on 31.3.2013 when the account of Corporate Debtor was declared NPA, the financial creditor initiated proceedings under SARFAESI Act on 18th January 2014, that is the date on which notice under Section 13(2) was issued, proceeded with the same, and even took possession of the assets, until the entire proceedings were stayed by the High Court by its order dated 24th July 2017. The proceedings under Section 7 of the IBC were initiated on 10th July 2018.87. In our view, since the proceedings in the High Court were still pending on the date of filing of the application under Section 7 of the IBC in the NCLT, the entire period after the initiation of proceedings under the SARFAESI Act could be excluded. If the period from the date of institution of the proceedings under the SARFAESI Act till the date of filing of the application under Section 7 of the IBC in the NCLT is excluded, the application in the NCLT is well within the limitation of three years. Even if the period between the date of the notice under Section 13(2) and date of the interim order of the High Court staying the proceedings under the SARFAESI Act, on the prima facie ground of want of jurisdiction is excluded, the proceedings under Section 7 of IBC are still within limitation of three years.88. An Adjudicating Authority under the IBC is not a substitute forum for a collection of debt in the sense it cannot reopen debts which are barred by law, or debts, recovery whereof have become time barred. The Adjudicating Authority does not resolve disputes, in the manner of suits, arbitrations and similar proceedings. However, the ultimate object of an application under Section 7 or 9 of the IBC is the realization of a debt by invocation of the Insolvency Resolution Process. In any case, since the cause of action for initiation of an application, whether under Section 7 or under Section 9 of the IBC, is default on the part of the Corporate Debtor, and the provisions of the Limitation Act 1963, as far as may be, have been applied to proceedings under the IBC, there is no reason why Section 14 or 18 of the Limitation Act would not apply for the purpose of computation of the period of limitation.92. In other words, the provisions of the Limitation Act would ap- ply mutatis mutandis to proceedings under the IBC in the NCLT/NCLAT. To quote Shah J. in New India Sugar Mill Limited v. Commissioner of Sales Tax, Bihar AIR 1963 SC 1207 (P.1213) , It is a recognised rule of in- terpretation of statutes that expression used therein should ordinarily be understood in a sense in which they best harmonise with the ob- ject of the statute, and which effectuate the object of the Legisla- ture.93. As held by this Court in Busching Schmitz Private Ltd. v. P.T. Menghani AIR 1977 SC 1569 , the Court should adopt an object oriented ap-proach keeping in mind the principle that legislative futility is to be ruled out so long as interpretative possibility permits. Needless to mention that the object oriented approach cannot be carried to the extent of doing violence to the plain language used, by rewriting the section or substituting words in place of the actual words used by Legislature.94. The use of words as far as may be, occurring in Section 238A of the IBC tones down the rigour of the words shall in the aforesaid Section which is normally considered as mandatory. The expression as far as may be is indicative of the fact that all or any of the provi- sions of the Limitation Act may not apply to proceedings before the Adjudicating Authority (NCLT) or the Appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. At the same time, the words as far as may be cannot be construed as a to- tal exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permits a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said Section.95. If, in the context of proceedings under Section 7 or 9 of the IBC, Section 14 were to be interpreted with rigid and pedantic adherence to its literal meaning, to hold that only civil proceedings in Court would enjoy exclusion, the result would be that an applicant would not even be entitled to exclusion of the period of time spent in bona fide invoking and diligently pursuing an earlier application under the same provision of IBC, for the same relief, before an Adjudicating Authority, lacking territorial jurisdiction This could not possibly have been the legislative intent.96. In our considered opinion, the judgment of the NCLAT in the case of Ishrat Ali is unsustainable in law. The proceedings under the SARFAESI Act, 2002 are undoubtedly civil proceedings. In S.A.L. Narayan Rao and Anr. v. Ishwarlal Bhagwandas and Anr. AIR 1965 SC 1818 , the Constitution Bench of this Court held:-…..The expression civil proceeding is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State.97. On a parity of reasoning, there is no rationale for the view that the proceedings initiated by a secured creditor against a borrower under the SARFAESI Act for taking possession of its secured assets, were intended to be excluded from the category of civil proceedings. In this context, reference may be made to the judgment of this Court in United Bank of India v. Satyawati Tandon and Ors. (2010) 8 SCC 110 cited by Mr. Deepak Sai, where this Court observed:11. ….The Government of India accepted the recommendations of the two Committees and that led to enactment of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act), which can be termed as one of the most radical legislative measures taken by Parliament for ensuring that dues of secured creditors including banks, financial institutions are recovered from the defaulting borrowers without any obstruction. For the first time, the secured creditors have been empowered to take steps for recovery of their dues without intervention of the courts or tribunals.99. The Chief Metropolitan Magistrate or the Judicial Magistrate, as the case may be, exercising powers under Section 14 of the SARFAESI Act, functions as a Civil Court/Executing Court. Proceedings under the SARFAESI Act would, therefore, be deemed to be civil proceedings in a Court. Moreover, proceedings under the SARFAESI Act under Section 13(4) are appealable to the DRT under Section 18 of the SARFAESI Act. Mr. Daves argument that proceedings under the SARFAESI Act would not qualify for exclusion under Section 14 of the Limitation Act, because those proceedings were not conducted in a Civil Court, cannot be sustained.100. Another civil proceeding whether in a Court of first instance or of appeal or revision, against the party, for the same relief, would have to be construed to include any civil Proceeding in a forum, whether of first instance, or appellate, or revisional, against the same party for similar relief, more so, having regard to the language and tenor of Section 238A of the Limitation Act which applies the provisions of the Limitation Act as far as may be, to proceedings in the NCLT/NCLAT.101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression Court in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act.102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing sufficient cause. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay. | 0 | 15,170 | 6,802 | ### Instruction:
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of section 13 taken by the secured creditor for enforcement of security are in accordance with the provisions of this Act and the rules made thereunder. (3) If, the Debts Recovery Tribunal, after examining the facts and circumstances of the case and evidence produced by the parties, comes to the conclusion that any of the measures referred to in sub-section (4) of section 13, taken by the secured creditor are not in accordance with the provisions of this Act and the rules made thereunder, and require restoration of the management or restoration of possession, of the secured assets to the borrower or other aggrieved person, it may, by order,— (a) declare the recourse to any one or more measures referred to in sub- section (4) of section 13 taken by the secured creditor as invalid; and (b) restore the possession of secured assets or management of secured assets to the borrower or such other aggrieved person, who has made an application under sub-section (1), as the case may be; and (c) pass such other direction as it may consider appropriate and necessary in relation to any of the recourse taken by the secured creditor under sub-section (4) of section 13. (4) If, the Debts Recovery Tribunal declares the recourse taken by a secured creditor under sub-section (4) of section 13, is in accordance with the provisions of this Act and the rules made thereunder, then, notwithstanding anything contained in any other law for the time being in force, the secured creditor shall be entitled to take recourse to one or more of the measures specified under sub-section (4) of section 13 to recover his secured debt. (4A) Where— (i) any person, in an application under sub-section (1), claims any tenancy or leasehold rights upon the secured asset, the Debt Recovery Tribunal, after examining the facts of the case and evidence produced by the parties in relation to such claims shall, for the purposes of enforcement of security interest, have the jurisdiction to examine whether lease or tenancy,— (a) has expired or stood determined; or (b) is contrary to section 65A of the Transfer of Property Act, 1882 (4 of 1882); or (c) is contrary to terms of mortgage; or (d) is created after the issuance of notice of default and demand by the Bank under subsection (2) of section 13 of the Act; and (ii) the Debt Recovery Tribunal is satisfied that tenancy right or leasehold rights claimed in secured asset falls under the sub-clause (a) or sub-clause (b) or sub-clause (c) or sub-clause (d) of clause (i), then notwithstanding anything to the contrary contained in any other law for the time being in force, the Debt Recovery Tribunal may pass such order as it deems fit in accordance with the provisions of this Act. 18. Appeal to Appellate Tribunal.—(1) Any person aggrieved, by any order made by the Debts Recovery Tribunal under section 17, may prefer an appeal along with such fee, as may be prescribed]to the Appellate Tribunal within thirty days from the date of receipt of the order of Debts Recovery Tribunal. Provided that different fees may be prescribed for filing an appeal by the borrower or by the person other than the borrower: Provided further that no appeal shall be entertained unless the borrower has deposited with the Appellate Tribunal fifty per cent. of the amount of debt due from him, as claimed by the secured creditors or determined by the Debts Recovery Tribunal, whichever is less: Provided also that the Appellate Tribunal may, for the reasons to be recorded in writing, reduce the amount to not less than twenty-five per cent. of debt referred to in the second proviso. (2) Save as otherwise provided in this Act, the Appellate Tribunal shall, as far as may be, dispose of the appeal in accordance with the provisions of the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 (51 of 1993) and rules made thereunder. 99. The Chief Metropolitan Magistrate or the Judicial Magistrate, as the case may be, exercising powers under Section 14 of the SARFAESI Act, functions as a Civil Court/Executing Court. Proceedings under the SARFAESI Act would, therefore, be deemed to be civil proceedings in a Court. Moreover, proceedings under the SARFAESI Act under Section 13(4) are appealable to the DRT under Section 18 of the SARFAESI Act. Mr. Daves argument that proceedings under the SARFAESI Act would not qualify for exclusion under Section 14 of the Limitation Act, because those proceedings were not conducted in a Civil Court, cannot be sustained. 100. Another civil proceeding whether in a Court of first instance or of appeal or revision, against the party, for the same relief, would have to be construed to include any civil Proceeding in a forum, whether of first instance, or appellate, or revisional, against the same party for similar relief, more so, having regard to the language and tenor of Section 238A of the Limitation Act which applies the provisions of the Limitation Act as far as may be, to proceedings in the NCLT/NCLAT. 101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression Court in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act. 102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing sufficient cause. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.
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as far as may be is indicative of the fact that all or any of the provi- sions of the Limitation Act may not apply to proceedings before the Adjudicating Authority (NCLT) or the Appellate authority (NCLAT) if they are patently inconsistent with some provisions of the IBC. At the same time, the words as far as may be cannot be construed as a to- tal exclusion of the requirements of the basic principles of Section 14 of the Limitation Act, but permits a wider, more liberal, contextual and purposive interpretation by necessary modification, which is in harmony with the principles of the said Section.95. If, in the context of proceedings under Section 7 or 9 of the IBC, Section 14 were to be interpreted with rigid and pedantic adherence to its literal meaning, to hold that only civil proceedings in Court would enjoy exclusion, the result would be that an applicant would not even be entitled to exclusion of the period of time spent in bona fide invoking and diligently pursuing an earlier application under the same provision of IBC, for the same relief, before an Adjudicating Authority, lacking territorial jurisdiction This could not possibly have been the legislative intent.96. In our considered opinion, the judgment of the NCLAT in the case of Ishrat Ali is unsustainable in law. The proceedings under the SARFAESI Act, 2002 are undoubtedly civil proceedings. In S.A.L. Narayan Rao and Anr. v. Ishwarlal Bhagwandas and Anr. AIR 1965 SC 1818 , the Constitution Bench of this Court held:-…..The expression civil proceeding is not defined in the Constitution, nor in the General Clauses Act. The expression in our judgment covers all proceedings in which a party asserts the existence of a civil right conferred by the civil law or by statute, and claims relief for breach thereof. A criminal proceeding on the other hand is ordinarily one in which if carried to its conclusion it may result in the imposition of sentences such as death, imprisonment, fine or forfeiture of property. It also includes proceedings in which in the larger interest of the State, orders to prevent apprehended breach of the peace, orders to bind down persons who are a danger to the maintenance of peace and order, or orders aimed at preventing vagrancy are contemplated to be passed. But the whole area of proceedings, which reach the High Courts is not exhausted by classifying the proceedings as civil and criminal. There are certain proceedings which may be regarded as neither civil nor criminal. For instance, proceeding for contempt of court, and for exercise of disciplinary jurisdiction against lawyers or other professionals, such as Chartered Accountants may not fall within the classification of proceedings, civil or criminal. But there is no warrant for the view that from the category of civil proceedings, it was intended to exclude proceedings relating to or which seek relief against enforcement of taxation laws of the State.97. On a parity of reasoning, there is no rationale for the view that the proceedings initiated by a secured creditor against a borrower under the SARFAESI Act for taking possession of its secured assets, were intended to be excluded from the category of civil proceedings. In this context, reference may be made to the judgment of this Court in United Bank of India v. Satyawati Tandon and Ors. (2010) 8 SCC 110 cited by Mr. Deepak Sai, where this Court observed:11. ….The Government of India accepted the recommendations of the two Committees and that led to enactment of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 (for short the SARFAESI Act), which can be termed as one of the most radical legislative measures taken by Parliament for ensuring that dues of secured creditors including banks, financial institutions are recovered from the defaulting borrowers without any obstruction. For the first time, the secured creditors have been empowered to take steps for recovery of their dues without intervention of the courts or tribunals.99. The Chief Metropolitan Magistrate or the Judicial Magistrate, as the case may be, exercising powers under Section 14 of the SARFAESI Act, functions as a Civil Court/Executing Court. Proceedings under the SARFAESI Act would, therefore, be deemed to be civil proceedings in a Court. Moreover, proceedings under the SARFAESI Act under Section 13(4) are appealable to the DRT under Section 18 of the SARFAESI Act. Mr. Daves argument that proceedings under the SARFAESI Act would not qualify for exclusion under Section 14 of the Limitation Act, because those proceedings were not conducted in a Civil Court, cannot be sustained.100. Another civil proceeding whether in a Court of first instance or of appeal or revision, against the party, for the same relief, would have to be construed to include any civil Proceeding in a forum, whether of first instance, or appellate, or revisional, against the same party for similar relief, more so, having regard to the language and tenor of Section 238A of the Limitation Act which applies the provisions of the Limitation Act as far as may be, to proceedings in the NCLT/NCLAT.101. In our considered view, keeping in mind the scope and ambit of proceedings under the IBC before the NCLT/NCLAT, the expression Court in Section 14(2) would be deemed to be any forum for a civil proceeding including any Tribunal or any forum under the SARFAESI Act.102. In any case, Section 5 and Section 14 of the Limitation Act are not mutually exclusive. Even in a case where Section 14 does not strictly apply, the principles of Section 14 can be invoked to grant relief to an applicant under Section 5 of the Limitation Act by purposively construing sufficient cause. It is well settled that omission to refer to the correct section of a statute does not vitiate an order. At the cost of repetition it is reiterated that delay can be condoned irrespective of whether there is any formal application, if there are sufficient materials on record disclosing sufficient cause for the delay.
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UTTAR HARYANA BIJLI VITRAN NIGAM LTD. AND ANOTHER Vs. ADANI POWER (MUNDRA) LIMITED AND ANOTHER | in law or in the contract entered into between the two parties, there is no reason why the Coalfields should not be compensated by payment of interest for the period for which the consumers/purchasers did not pay the amount of enhanced royalty which is a constituent part of the price of the mineral for the period for which it remained unpaid. The justification for award of interest stands fortified by the weighty factor that the Coalfields themselves are obliged to pay interest to the State on such amount. It will be a travesty of justice to hold that though the Coalfields must pay the amount of interest to the State but the consumers/purchasers in whose hands the money was actually withheld be exonerated from liability to pay the interest. What was argued by Shri Giri was that this judgment cannot be applied to fact situations that arise under the PPA in view of Article 18.17 of the PPA which clearly states that the liability of the seller and the procurer shall be limited to that explicitly provided in this agreement and that, in no event, shall either procurer or seller claim any indirect or consequential losses or damages. Since we have found that the claim for carrying costs is under Article 13 of the PPAs, this judgment would have no application to the facts of the present case. 16. It is clear that the restitutionary principles encapsulated in Article 13.2 would take effect for computing the impact of Change in Law. We see no reason to interfere with the impugned judgment, wherein it has been held by the Appellate Tribunal that the respondent No. 1 – Adani Power had started claiming Change in Law event compensation in respect of installation of FGD along with carrying cost, right from the year 2012 and that it has approached several fora to get this claim settled. The respondent No. 1 – Adani Power finally succeeded in getting compensation towards FGD only on 28th March, 2018, but the carrying cost claim was denied. The relief relating to carrying cost was granted to the respondent No. 1 – Adani Power by the Appellate Tribunal vide order dated 13th April, 2018 which was duly tested by this Court and upheld on 25th February, 20196. Once carrying cost has been granted in favour of the respondent No. 1 – Adani Power, it cannot be urged by the appellants that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. Grant of compound interest on carrying cost and that too from the date of the occurrence of the Change in Law event is based on sound logic. The idea behind granting interest on carrying cost is not far to see, it is aimed at restituting a party that is adversely affected by a Change in Law event and restore it to its original economic position as if such a Change in Law event had not taken place. 17. In the instant case, the respondent No. 1 – Adani Power had to incur expenses to purchase the FGD and install it in view of the terms and conditions of the Environment Clearance given by the Ministry of Environment and Forests, Union of India, in the year 2010. For this, it had to arrange finances by borrowing from banks. The interest rate framework followed by Scheduled Commercial banks and regulated by the Reserve Bank of India mandates that interest shall be charged on all advances at monthly rests. In this view of the matter, the respondent No. 1 – Adani Power is justified in stating that if the banks have charged it interest on monthly rest basis for giving loans to purchase the FGD, any restitution will be incomplete, if it is not fully compensated for the interest paid by it to the banks on compounding basis. We are of the opinion that interest on carrying cost is nothing but time value for money and the only manner in which a party can be afforded the benefit of restitution in every which way. In the facts of the instant case, the Appellate Tribunal was justified in allowing interest on carrying cost in favour of the respondent No. 1 – Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021. There was no justification for the Central Commission to have excluded the period between 2014 and 2018 and grant relief from the date of the passing of the order i.e., from 28th March, 2018 to 2021; nor is there any logic to such a segregation of time lines, particularly when the respondent No. 1 – Adani Power was prompt in raising a claim on the appellants and pursuing its legal remedies. 18. We are not persuaded by the submission made on behalf of the appellants that since no fault is attributable to them for the delay caused in determination of the amount, they cannot be saddled with the liability to pay interest on carrying cost; nor is there any substance in the argument sought to be advanced that there is no provision in the PPAs for payment of compound interest from the date when the Change in Law event had occurred. 19. The entire concept of restitutionary principles engrained in Article 13 of the PPAs has to be read in the correct perspective. The said principle that governs compensating a party for the time value for money, is the very same principle that would be invoked and applied for grant of interest on carrying cost on account of a Change in Law event. Therefore, reliance on Articles 11.3.4 r/w 11.8.3 on the part of the appellants cannot take their case further. Nor does the decision in Priya VartS Case7 have any application to the facts of the present case as the said case relates to payment of compensation under the Land Acquisition Act and the interest that would be payable in case of delayed payment of compensation. | 0[ds]12. We have heard the arguments advanced by the counsel for the parties and perused the relevant provisions of the PPAs. As noted above, the appellants have not raised any dispute with regard to grant of interest to the respondent No. 1 – Adani Power by way of carrying cost from the date on which the Change in Law event took place till the date the amount was determined as payable to respondent No. 1 – Adani Power in terms of the order dated 28th March, 2018, passed by the Central Commission.16. It is clear that the restitutionary principles encapsulated in Article 13.2 would take effect for computing the impact of Change in Law. We see no reason to interfere with the impugned judgment, wherein it has been held by the Appellate Tribunal that the respondent No. 1 – Adani Power had started claiming Change in Law event compensation in respect of installation of FGD along with carrying cost, right from the year 2012 and that it has approached several fora to get this claim settled. The respondent No. 1 – Adani Power finally succeeded in getting compensation towards FGD only on 28th March, 2018, but the carrying cost claim was denied. The relief relating to carrying cost was granted to the respondent No. 1 – Adani Power by the Appellate Tribunal vide order dated 13th April, 2018 which was duly tested by this Court and upheld on 25th February, 20196. Once carrying cost has been granted in favour of the respondent No. 1 – Adani Power, it cannot be urged by the appellants that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. Grant of compound interest on carrying cost and that too from the date of the occurrence of the Change in Law event is based on sound logic. The idea behind granting interest on carrying cost is not far to see, it is aimed at restituting a party that is adversely affected by a Change in Law event and restore it to its original economic position as if such a Change in Law event had not taken place.17. In the instant case, the respondent No. 1 – Adani Power had to incur expenses to purchase the FGD and install it in view of the terms and conditions of the Environment Clearance given by the Ministry of Environment and Forests, Union of India, in the year 2010. For this, it had to arrange finances by borrowing from banks. The interest rate framework followed by Scheduled Commercial banks and regulated by the Reserve Bank of India mandates that interest shall be charged on all advances at monthly rests. In this view of the matter, the respondent No. 1 – Adani Power is justified in stating that if the banks have charged it interest on monthly rest basis for giving loans to purchase the FGD, any restitution will be incomplete, if it is not fully compensated for the interest paid by it to the banks on compounding basis. We are of the opinion that interest on carrying cost is nothing but time value for money and the only manner in which a party can be afforded the benefit of restitution in every which way. In the facts of the instant case, the Appellate Tribunal was justified in allowing interest on carrying cost in favour of the respondent No. 1 – Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021. There was no justification for the Central Commission to have excluded the period between 2014 and 2018 and grant relief from the date of the passing of the order i.e., from 28th March, 2018 to 2021; nor is there any logic to such a segregation of time lines, particularly when the respondent No. 1 – Adani Power was prompt in raising a claim on the appellants and pursuing its legal remedies.18. We are not persuaded by the submission made on behalf of the appellants that since no fault is attributable to them for the delay caused in determination of the amount, they cannot be saddled with the liability to pay interest on carrying cost; nor is there any substance in the argument sought to be advanced that there is no provision in the PPAs for payment of compound interest from the date when the Change in Law event had occurred.19. The entire concept of restitutionary principles engrained in Article 13 of the PPAs has to be read in the correct perspective. The said principle that governs compensating a party for the time value for money, is the very same principle that would be invoked and applied for grant of interest on carrying cost on account of a Change in Law event. Therefore, reliance on Articles 11.3.4 r/w 11.8.3 on the part of the appellants cannot take their case further. Nor does the decision in Priya VartS Case7 have any application to the facts of the present case as the said case relates to payment of compensation under the Land Acquisition Act and the interest that would be payable in case of delayed payment of compensation. | 0 | 5,008 | 928 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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in law or in the contract entered into between the two parties, there is no reason why the Coalfields should not be compensated by payment of interest for the period for which the consumers/purchasers did not pay the amount of enhanced royalty which is a constituent part of the price of the mineral for the period for which it remained unpaid. The justification for award of interest stands fortified by the weighty factor that the Coalfields themselves are obliged to pay interest to the State on such amount. It will be a travesty of justice to hold that though the Coalfields must pay the amount of interest to the State but the consumers/purchasers in whose hands the money was actually withheld be exonerated from liability to pay the interest. What was argued by Shri Giri was that this judgment cannot be applied to fact situations that arise under the PPA in view of Article 18.17 of the PPA which clearly states that the liability of the seller and the procurer shall be limited to that explicitly provided in this agreement and that, in no event, shall either procurer or seller claim any indirect or consequential losses or damages. Since we have found that the claim for carrying costs is under Article 13 of the PPAs, this judgment would have no application to the facts of the present case. 16. It is clear that the restitutionary principles encapsulated in Article 13.2 would take effect for computing the impact of Change in Law. We see no reason to interfere with the impugned judgment, wherein it has been held by the Appellate Tribunal that the respondent No. 1 – Adani Power had started claiming Change in Law event compensation in respect of installation of FGD along with carrying cost, right from the year 2012 and that it has approached several fora to get this claim settled. The respondent No. 1 – Adani Power finally succeeded in getting compensation towards FGD only on 28th March, 2018, but the carrying cost claim was denied. The relief relating to carrying cost was granted to the respondent No. 1 – Adani Power by the Appellate Tribunal vide order dated 13th April, 2018 which was duly tested by this Court and upheld on 25th February, 20196. Once carrying cost has been granted in favour of the respondent No. 1 – Adani Power, it cannot be urged by the appellants that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. Grant of compound interest on carrying cost and that too from the date of the occurrence of the Change in Law event is based on sound logic. The idea behind granting interest on carrying cost is not far to see, it is aimed at restituting a party that is adversely affected by a Change in Law event and restore it to its original economic position as if such a Change in Law event had not taken place. 17. In the instant case, the respondent No. 1 – Adani Power had to incur expenses to purchase the FGD and install it in view of the terms and conditions of the Environment Clearance given by the Ministry of Environment and Forests, Union of India, in the year 2010. For this, it had to arrange finances by borrowing from banks. The interest rate framework followed by Scheduled Commercial banks and regulated by the Reserve Bank of India mandates that interest shall be charged on all advances at monthly rests. In this view of the matter, the respondent No. 1 – Adani Power is justified in stating that if the banks have charged it interest on monthly rest basis for giving loans to purchase the FGD, any restitution will be incomplete, if it is not fully compensated for the interest paid by it to the banks on compounding basis. We are of the opinion that interest on carrying cost is nothing but time value for money and the only manner in which a party can be afforded the benefit of restitution in every which way. In the facts of the instant case, the Appellate Tribunal was justified in allowing interest on carrying cost in favour of the respondent No. 1 – Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021. There was no justification for the Central Commission to have excluded the period between 2014 and 2018 and grant relief from the date of the passing of the order i.e., from 28th March, 2018 to 2021; nor is there any logic to such a segregation of time lines, particularly when the respondent No. 1 – Adani Power was prompt in raising a claim on the appellants and pursuing its legal remedies. 18. We are not persuaded by the submission made on behalf of the appellants that since no fault is attributable to them for the delay caused in determination of the amount, they cannot be saddled with the liability to pay interest on carrying cost; nor is there any substance in the argument sought to be advanced that there is no provision in the PPAs for payment of compound interest from the date when the Change in Law event had occurred. 19. The entire concept of restitutionary principles engrained in Article 13 of the PPAs has to be read in the correct perspective. The said principle that governs compensating a party for the time value for money, is the very same principle that would be invoked and applied for grant of interest on carrying cost on account of a Change in Law event. Therefore, reliance on Articles 11.3.4 r/w 11.8.3 on the part of the appellants cannot take their case further. Nor does the decision in Priya VartS Case7 have any application to the facts of the present case as the said case relates to payment of compensation under the Land Acquisition Act and the interest that would be payable in case of delayed payment of compensation.
### Response:
0
### Explanation:
12. We have heard the arguments advanced by the counsel for the parties and perused the relevant provisions of the PPAs. As noted above, the appellants have not raised any dispute with regard to grant of interest to the respondent No. 1 – Adani Power by way of carrying cost from the date on which the Change in Law event took place till the date the amount was determined as payable to respondent No. 1 – Adani Power in terms of the order dated 28th March, 2018, passed by the Central Commission.16. It is clear that the restitutionary principles encapsulated in Article 13.2 would take effect for computing the impact of Change in Law. We see no reason to interfere with the impugned judgment, wherein it has been held by the Appellate Tribunal that the respondent No. 1 – Adani Power had started claiming Change in Law event compensation in respect of installation of FGD along with carrying cost, right from the year 2012 and that it has approached several fora to get this claim settled. The respondent No. 1 – Adani Power finally succeeded in getting compensation towards FGD only on 28th March, 2018, but the carrying cost claim was denied. The relief relating to carrying cost was granted to the respondent No. 1 – Adani Power by the Appellate Tribunal vide order dated 13th April, 2018 which was duly tested by this Court and upheld on 25th February, 20196. Once carrying cost has been granted in favour of the respondent No. 1 – Adani Power, it cannot be urged by the appellants that interest on carrying cost should be calculated on simple interest basis instead of compound interest basis. Grant of compound interest on carrying cost and that too from the date of the occurrence of the Change in Law event is based on sound logic. The idea behind granting interest on carrying cost is not far to see, it is aimed at restituting a party that is adversely affected by a Change in Law event and restore it to its original economic position as if such a Change in Law event had not taken place.17. In the instant case, the respondent No. 1 – Adani Power had to incur expenses to purchase the FGD and install it in view of the terms and conditions of the Environment Clearance given by the Ministry of Environment and Forests, Union of India, in the year 2010. For this, it had to arrange finances by borrowing from banks. The interest rate framework followed by Scheduled Commercial banks and regulated by the Reserve Bank of India mandates that interest shall be charged on all advances at monthly rests. In this view of the matter, the respondent No. 1 – Adani Power is justified in stating that if the banks have charged it interest on monthly rest basis for giving loans to purchase the FGD, any restitution will be incomplete, if it is not fully compensated for the interest paid by it to the banks on compounding basis. We are of the opinion that interest on carrying cost is nothing but time value for money and the only manner in which a party can be afforded the benefit of restitution in every which way. In the facts of the instant case, the Appellate Tribunal was justified in allowing interest on carrying cost in favour of the respondent No. 1 – Adani Power for the period between the year 2014, when the FGD was installed, till the year 2021. There was no justification for the Central Commission to have excluded the period between 2014 and 2018 and grant relief from the date of the passing of the order i.e., from 28th March, 2018 to 2021; nor is there any logic to such a segregation of time lines, particularly when the respondent No. 1 – Adani Power was prompt in raising a claim on the appellants and pursuing its legal remedies.18. We are not persuaded by the submission made on behalf of the appellants that since no fault is attributable to them for the delay caused in determination of the amount, they cannot be saddled with the liability to pay interest on carrying cost; nor is there any substance in the argument sought to be advanced that there is no provision in the PPAs for payment of compound interest from the date when the Change in Law event had occurred.19. The entire concept of restitutionary principles engrained in Article 13 of the PPAs has to be read in the correct perspective. The said principle that governs compensating a party for the time value for money, is the very same principle that would be invoked and applied for grant of interest on carrying cost on account of a Change in Law event. Therefore, reliance on Articles 11.3.4 r/w 11.8.3 on the part of the appellants cannot take their case further. Nor does the decision in Priya VartS Case7 have any application to the facts of the present case as the said case relates to payment of compensation under the Land Acquisition Act and the interest that would be payable in case of delayed payment of compensation.
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THE DESIGNATED AUTHORITY & ORS Vs. M/S THE ANDHRA PETROCHEMICALS LIMITED | take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) - (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the antidumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the antidumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995. 30. Keeping the imperative of completion of investigation within a pre-determined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance. The relevant provisions of the Manual are extracted below: 5.9 The POI proposed in the application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data. 5.10 The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only) instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period. 31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. 32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.) | 1[ds]25. This court, in S&S Enterprise vs. Designated Authority, (2005) 3 SCC 337 observed that the purpose behind the imposition of the duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding the domestic markets with goods at rates which are lower than the rate at which the exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to the domestic market. It was noted that levy of anti-dumping duty is a move to remedy injury, recognized by GATT that balancesthe right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry.26. Reliance Industries Ltd. vs. Designated Authority, (2006) 10 SCC 368 explained that industries built after independence with great difficulty should not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. The Court also said that, The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping while allowing for healthy competition.27. The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose anti-dumping duty takes place (through a report).(Tata Chemicals vs. Union of India, (2008) 17 SCC 180 ; Automotive Tyre Manufacturers Association vs. the Designated Authority (2011) 2 SCC 258 ) However, this proceeding culminates with a recommendation; the Central Government finally decides whether to impose such a duty, the extent of such duty, and its duration.(Rule 17 which speaks of recommendationby the DA. Also, the power to levy duty is discretionary, evident from Rule 18 which leaves it to the Central Government to levy anti-dumping duty, by following the prescribed methods) Under Rule 4, the DA is duty bound to conduct i) investigation of the existence, degree and effect of any alleged dumping in relation to imports of any article ; (ii) identify the article(s) on which anti-dumping duty is to be imposed; (iii) submit findings, provisional or otherwise to Central Government; (iv) determine the normal value, export price and the margin of dumping in relation to the article under investigation; and (v) determine the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of article from specified countries. The meaning of dumping is defined by Rule 10. Rule 17, which speaks of the findings of the DA, obliges that authority to make its final findings not later than one year from the initiation of investigation through a report that outlines the export price, normal value and margin of dumping, whether import of the article into India from specified countries causes material injury, or threatens injury, or materially retards the establishment of any industry in India, the causal link between the dumped import, etc. The proviso to Rule 17 (1) empowers the Central Government in its discretion in special circumstances to extend further the said period of one year by six months, within which the investigation is to be completed.29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995.31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.) | 1 | 6,341 | 1,286 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) - (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the antidumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the antidumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995. 30. Keeping the imperative of completion of investigation within a pre-determined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance. The relevant provisions of the Manual are extracted below: 5.9 The POI proposed in the application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data. 5.10 The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only) instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period. 31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. 32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.)
### Response:
1
### Explanation:
the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry.26. Reliance Industries Ltd. vs. Designated Authority, (2006) 10 SCC 368 explained that industries built after independence with great difficulty should not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. The Court also said that, The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping while allowing for healthy competition.27. The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose anti-dumping duty takes place (through a report).(Tata Chemicals vs. Union of India, (2008) 17 SCC 180 ; Automotive Tyre Manufacturers Association vs. the Designated Authority (2011) 2 SCC 258 ) However, this proceeding culminates with a recommendation; the Central Government finally decides whether to impose such a duty, the extent of such duty, and its duration.(Rule 17 which speaks of recommendationby the DA. Also, the power to levy duty is discretionary, evident from Rule 18 which leaves it to the Central Government to levy anti-dumping duty, by following the prescribed methods) Under Rule 4, the DA is duty bound to conduct i) investigation of the existence, degree and effect of any alleged dumping in relation to imports of any article ; (ii) identify the article(s) on which anti-dumping duty is to be imposed; (iii) submit findings, provisional or otherwise to Central Government; (iv) determine the normal value, export price and the margin of dumping in relation to the article under investigation; and (v) determine the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of article from specified countries. The meaning of dumping is defined by Rule 10. Rule 17, which speaks of the findings of the DA, obliges that authority to make its final findings not later than one year from the initiation of investigation through a report that outlines the export price, normal value and margin of dumping, whether import of the article into India from specified countries causes material injury, or threatens injury, or materially retards the establishment of any industry in India, the causal link between the dumped import, etc. The proviso to Rule 17 (1) empowers the Central Government in its discretion in special circumstances to extend further the said period of one year by six months, within which the investigation is to be completed.29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995.31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.)
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Shree Changdeo Sugar Mills Vs. U O I | the term "basic wages" as given in Section 2(b) of the Employees Provident Funds Act and submitted that the basic wage only included emoluments which were earned by an employee while on duty. He submitted that therefore ad hoc payment made under a Settlement would not be a basic pay. He further submitted that as the workers were not working since 1984 it could not be said that they were on duty. He submitted that what was paid under the Settlement remained an ad hoc payment and that there could be no claim for deduction of Provident Fund on the amounts paid under the Settlement. 6. In support of his submission he relied upon the case of Burmah Shell Oil Storage and Distributing Co. Ltd. v. Regional Provident Fund Commissioner, Delhi reported in 1981(2) L.L.J. 86. In this case it has been held that a settlement allowance is not a basic wage. 7. He also relied upon the case of Bridge and Roof Co. (India) Ltd. v. Union of India reported in 1963(3) S.C.R. 978. In this case the question was whether production bonus payable as part of a contract of employment was basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act, 1952. It was held that production bonus was a kind of incentive and would, therefore, not be a basic wage. 8. He also relied upon the case of Dinesh Khare v. Industrial Tribunal, Jaipur and others reported in 1982(2) L.L.J. 17, wherein one months wages were paid to a workman under Section 33(2)(b) of the Industrial Disputes Act. The question was whether provident fund was deductible on this amount. The Court held that this was in the nature of a notice pay and was therefore, not a basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act and therefore, provident fund was not deductible on this amount. 9. He also relied upon the case of India United Mills Ltd. v. Regional Provident Fund Commissioner Bombay and others reported in AIR 1960 Bombay 203. In this case also the question was whether payment made to a workman for termination of his service in lieu of a notice would be a basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act. It was held that the amounts paid as notice pay for termination do not fall within the term basic wage and, therefore, provident fund cannot be deducted on it. 10. Based on the above authorities it was submitted that as this was merely an ad hoc payment made under a Settlement it was not a basic wage and no deduction towards Provident Fund could be made on this payment. 11. We are unable to accept the submissions. Undoubtedly contribution towards Provident Fund can only be on a basic wage. However, it is not at all necessary that the workman must actually be on duty or that the workman should actually have worked in order to attract the provisions of the Employees Provident Funds Act. For example, there may be a lockout in a Company. During the period of lockout the workmen may not have worked yet for the purpose of the Employees Provident Funds Act they will be deemed to have been on duty and Provident Fund would be deductible on their wages. In this case by order dated 12th December, 1988, the High Court (pursuant to directions of this Court) fixed 31st October, 1988 as a date when the services of the employees stood terminated/retrenched. Thus upto 31st October, 1988 the employees were in service of the Appellant Company. They were, therefore, deemed to be on duty upto 31st October, 1988. As set out above many of these employees had raised claims before the Labour Court and there were Awards of the Labour Court for payment of arrears of wages and retrenchment compensation. All that the Settlement did was that, by Agreement, the total claim of the workmen was a claim for wages upto 31st October, 1988. This was a claim for wages for a period during which they were on "deemed duty". Clause 5 of the Settlement, which has been set out herein above, shows that a sum of Rs. 35 lakhs has been paid towards Wages and another sum of Rs. 10 lakhs has been paid towards Retaining (Seasonal) wages. These are amounts which are paid for wages during a period when the workmen are deemed to be on duty. Therefore it is Basic Wage within the meaning of Section 2(b) of the Employees Provident Funds Act. All the cases relied upon by Mr. Sharma are of no assistance to him as in those cases the amounts were clearly not Basic Wages. In this case the above mentioned two sums of Rs. 35 lakhs and Rs. 10 lakhs are wages. 12. Mr. Sharma lastly submitted that the Settlement dated 2nd December, 1995 clearly provided that there were to be no deductions, except Unions contribution of 7%. He submitted that even though the Appellant Company could not deduct Provident Fund from the wages paid to the employees they are now being made liable to pay to the 2nd Respondent even the employees share. He submitted that, even if it is held that the Appellant Company is liable to pay Provident Fund, they should not be made to now contribute the employees share as they could not and have not deducted the same from the wages paid. We are unable to accept this submission also. It is the duty of the employer to contribute. The employers agreement with the employee, not to deduct does not discharge the employer of his obligation in law to make payment. The term of the settlement which provides that there shall be no deduction only means that the Appellant Company has agreed to take on this liability also. 13. We, therefore, find no infirmity in the order of the learned Single Judge or the Division Bench of the High Court. | 0[ds]11. We are unable to accept the submissions. Undoubtedly contribution towards Provident Fund can only be on a basic wage. However, it is not at all necessary that the workman must actually be on duty or that the workman should actually have worked in order to attract the provisions of the Employees Provident Funds Act.Mr. Sharma lastly submitted that the Settlement dated 2nd December, 1995 clearly provided that there were to be no deductions, except Unions contribution of 7%. He submitted that even though the Appellant Company could not deduct Provident Fund from the wages paid to the employees they are now being made liable to pay to the 2nd Respondent even the employees share. He submitted that, even if it is held that the Appellant Company is liable to pay Provident Fund, they should not be made to now contribute the employees share as they could not and have not deducted the same from the wages paid. We are unable to accept this submission also. It is the duty of the employer to contribute. The employers agreement with the employee, not to deduct does not discharge the employer of his obligation in law to make payment. The term of the settlement which provides that there shall be no deduction only means that the Appellant Company has agreed to take on this liability also.We, therefore, find no infirmity in the order of the learned Single Judge or the Division Bench of the High Court. | 0 | 1,785 | 268 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the term "basic wages" as given in Section 2(b) of the Employees Provident Funds Act and submitted that the basic wage only included emoluments which were earned by an employee while on duty. He submitted that therefore ad hoc payment made under a Settlement would not be a basic pay. He further submitted that as the workers were not working since 1984 it could not be said that they were on duty. He submitted that what was paid under the Settlement remained an ad hoc payment and that there could be no claim for deduction of Provident Fund on the amounts paid under the Settlement. 6. In support of his submission he relied upon the case of Burmah Shell Oil Storage and Distributing Co. Ltd. v. Regional Provident Fund Commissioner, Delhi reported in 1981(2) L.L.J. 86. In this case it has been held that a settlement allowance is not a basic wage. 7. He also relied upon the case of Bridge and Roof Co. (India) Ltd. v. Union of India reported in 1963(3) S.C.R. 978. In this case the question was whether production bonus payable as part of a contract of employment was basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act, 1952. It was held that production bonus was a kind of incentive and would, therefore, not be a basic wage. 8. He also relied upon the case of Dinesh Khare v. Industrial Tribunal, Jaipur and others reported in 1982(2) L.L.J. 17, wherein one months wages were paid to a workman under Section 33(2)(b) of the Industrial Disputes Act. The question was whether provident fund was deductible on this amount. The Court held that this was in the nature of a notice pay and was therefore, not a basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act and therefore, provident fund was not deductible on this amount. 9. He also relied upon the case of India United Mills Ltd. v. Regional Provident Fund Commissioner Bombay and others reported in AIR 1960 Bombay 203. In this case also the question was whether payment made to a workman for termination of his service in lieu of a notice would be a basic wage within the meaning of Section 2(b) of the Employees Provident Funds Act. It was held that the amounts paid as notice pay for termination do not fall within the term basic wage and, therefore, provident fund cannot be deducted on it. 10. Based on the above authorities it was submitted that as this was merely an ad hoc payment made under a Settlement it was not a basic wage and no deduction towards Provident Fund could be made on this payment. 11. We are unable to accept the submissions. Undoubtedly contribution towards Provident Fund can only be on a basic wage. However, it is not at all necessary that the workman must actually be on duty or that the workman should actually have worked in order to attract the provisions of the Employees Provident Funds Act. For example, there may be a lockout in a Company. During the period of lockout the workmen may not have worked yet for the purpose of the Employees Provident Funds Act they will be deemed to have been on duty and Provident Fund would be deductible on their wages. In this case by order dated 12th December, 1988, the High Court (pursuant to directions of this Court) fixed 31st October, 1988 as a date when the services of the employees stood terminated/retrenched. Thus upto 31st October, 1988 the employees were in service of the Appellant Company. They were, therefore, deemed to be on duty upto 31st October, 1988. As set out above many of these employees had raised claims before the Labour Court and there were Awards of the Labour Court for payment of arrears of wages and retrenchment compensation. All that the Settlement did was that, by Agreement, the total claim of the workmen was a claim for wages upto 31st October, 1988. This was a claim for wages for a period during which they were on "deemed duty". Clause 5 of the Settlement, which has been set out herein above, shows that a sum of Rs. 35 lakhs has been paid towards Wages and another sum of Rs. 10 lakhs has been paid towards Retaining (Seasonal) wages. These are amounts which are paid for wages during a period when the workmen are deemed to be on duty. Therefore it is Basic Wage within the meaning of Section 2(b) of the Employees Provident Funds Act. All the cases relied upon by Mr. Sharma are of no assistance to him as in those cases the amounts were clearly not Basic Wages. In this case the above mentioned two sums of Rs. 35 lakhs and Rs. 10 lakhs are wages. 12. Mr. Sharma lastly submitted that the Settlement dated 2nd December, 1995 clearly provided that there were to be no deductions, except Unions contribution of 7%. He submitted that even though the Appellant Company could not deduct Provident Fund from the wages paid to the employees they are now being made liable to pay to the 2nd Respondent even the employees share. He submitted that, even if it is held that the Appellant Company is liable to pay Provident Fund, they should not be made to now contribute the employees share as they could not and have not deducted the same from the wages paid. We are unable to accept this submission also. It is the duty of the employer to contribute. The employers agreement with the employee, not to deduct does not discharge the employer of his obligation in law to make payment. The term of the settlement which provides that there shall be no deduction only means that the Appellant Company has agreed to take on this liability also. 13. We, therefore, find no infirmity in the order of the learned Single Judge or the Division Bench of the High Court.
### Response:
0
### Explanation:
11. We are unable to accept the submissions. Undoubtedly contribution towards Provident Fund can only be on a basic wage. However, it is not at all necessary that the workman must actually be on duty or that the workman should actually have worked in order to attract the provisions of the Employees Provident Funds Act.Mr. Sharma lastly submitted that the Settlement dated 2nd December, 1995 clearly provided that there were to be no deductions, except Unions contribution of 7%. He submitted that even though the Appellant Company could not deduct Provident Fund from the wages paid to the employees they are now being made liable to pay to the 2nd Respondent even the employees share. He submitted that, even if it is held that the Appellant Company is liable to pay Provident Fund, they should not be made to now contribute the employees share as they could not and have not deducted the same from the wages paid. We are unable to accept this submission also. It is the duty of the employer to contribute. The employers agreement with the employee, not to deduct does not discharge the employer of his obligation in law to make payment. The term of the settlement which provides that there shall be no deduction only means that the Appellant Company has agreed to take on this liability also.We, therefore, find no infirmity in the order of the learned Single Judge or the Division Bench of the High Court.
|
Haji Mohammed Ishaq Md. Sk. Mohammed & 3 Others Vs. Mohamed Iqbal & Mohamed Ali & Ors | of the plaintiff is that it had supplied 630 bags of tobacco to the defendants; received only a part of its price and the balance of about Rs. 90, 000/- remained due. It is true that no express contract, as understood in law, was pleaded in the plaint. But what was clearly pleaded was supply of goods by the plaintiff on its own account; acceptance of them by the defendants as such; part payment to the plaintiff and the balance remaining due to it. The case pleaded, therefore, was, as it is called in- law, an implied contract brought about by the conduct of the parties, namely, the supply of the goods by the plaintiff and their acceptance by the defendants. In the 5th paragraph of the plain t, extracted above, what was stated was that the transaction of supply of goods by the plaintiff to the defendants was brought about through the instrumentality of Rahim as the defendants were his old customers and Rahim prevailed upon the plaintiff t o supply the goods (on credit) to them. He helped the plaintiff in the recovery of their dues from the defendants to some extent. The plaintiff was entitled for the recovery of the balance. It was thus a pleading of direct contract of sale between the plaintiff and the defendants brought about by their conduct. A contract of sale means an agreement to sell or sale.It is not necessary to encumber this judgment with unnecessary citations of the case law on the point. We may with advantage only quote a passage from Chitty on Contracts, twenty-third edition, pages 9-10, para 12:"Express and implied contracts. Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is, permitted to board a bus; from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination. There may also be an implied contract when the parties make an express contract to last for a fixed term, and continue to act as though the contract still bound them after the term has expired. In such a case the court may infer that the parties have agreedto renew the express contract for another term. Express andimplied contracts are both contracts in the true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct. Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, it follows that the distinction between express and implied contracts has every little importance, even if it can be said to exist at all."8. We found absolutely no substance in the argument of the appellants to assail the finding of the High Court that the plaintiff bad supplied the good- on its own account to the defendants and that plaintiffs partner Babalal had handed over the Patti No. 12 (Bijak) Ext. 85 to the defendants at their ace of business at Katni alongwith the two Railway Receipts. The High Court has further found that the subsequent Railway Receipts were sent by registered post by the plaintiff and in several letters and telegrams the plaintiff demanded the payment of the price of the goods supplied from the defendants. No where Rahim was justifiably in the picture. The High Court has further pointed out the reason as to why about 501 bags of tobacco were supplied from the warehouse of Manavi who became the consignor in the several Railway Receipts, Manavi supplied the goods on plaintiffs account. It has further been found that the cheques drawn by the defendants in the name of Rahim were all endorsed by him in favour of the plaintiff and ultimately to the knowledge of the defendants the payment of the part of the price was by the defendants to the plaintiff. No goods were supplied on account of Rahim. No part payment was really and actually made to him and the defendants were liable to pay the balance of price to the plaintiff.On the facts found, there, is no difficulty in assuming or even inferring that initially the express contract for supply of the goods was between the defendants and Rahim. The fact whether Rahim acted as the plaintiffs agent or the defendants is immaterial. What is clear is that the orders placed with Rahim were in fact executed by the plaintiff by supply of goods to the defendants. It was so done on account of the plaintiff from its own warehouse as well as from Manavis warehouse. Defendants by their clear conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the plaintiff demanding the money from them on the assertion that the goods were despatched by the plaintiff and the defendants should pay the money, clearly showed that a direct contract which in law is called an implied contract by conduct was brought about between them. Whatever may be the jural relationship between the plaintiff and Rabim, Rahim and the defendants and in whatever manner be acted as a go-between man, between the plaintiff and the defendants, what is clear is that eventually and finally the supply of the goods by the plaintiff was to the defendant s on its own account and not on account of Rahim. The defendants clearly and unerringly accepted the goods as such and became liable to pay the whole of the price directly to the plaintiff. A part was paid and the liability to pay the balance was definitely incurred by them.9. | 0[ds]The learned Judge of the High Court who delivered the leading judgment in the appeal is not quite correct in saying that the plaint averments do not show bow the contract between the plaintiff and the defendants was formed; whether there was any express contract or an implied contract to be inferred from the conduct of the parties. It is also not quite accurate to say that what was required to be found was whether an implied contract to pay for the goods supplied could be inferred from the facts proved in the case. It seems to us that it is because of this reason that the other learned Judge constituting the Bench finally hearing the, appeal concurred in the order in the followingagree with the Order proposed by my learned brother. On the facts found by him, with which I agree, the inference of an implied contract isalready stated the simple case of the plaintiff is that it had supplied 630 bags of tobacco to the defendants; received only a part of its price and the balance of about Rs. 90, 000/- remained due. It is true that no express contract, as understood in law, was pleaded in the plaint. But what was clearly pleaded was supply of goods by the plaintiff on its own account; acceptance of them by the defendants as such; part payment to the plaintiff and the balance remaining due to it. The case pleaded, therefore, was, as it is called in- law, an implied contract brought about by the conduct of the parties, namely, the supply of the goods by the plaintiff and their acceptance by the defendants. In the 5th paragraph of the plain t, extracted above, what was stated was that the transaction of supply of goods by the plaintiff to the defendants was brought about through the instrumentality of Rahim as the defendants were his old customers and Rahim prevailed upon the plaintiff t o supply the goods (on credit) to them. He helped the plaintiff in the recovery of their dues from the defendants to some extent. The plaintiff was entitled for the recovery of the balance. It was thus a pleading of direct contract of sale between the plaintiff and the defendants brought about by their conduct. A contract of sale means an agreement to sell or sale.It is not necessary to encumber this judgment with unnecessary citations of the case law on the point. We may with advantage only quote a passage from Chitty on Contracts, twenty-third edition, pages 9-10, paraand implied contracts. Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is, permitted to board a bus; from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination. There may also be an implied contract when the parties make an express contract to last for a fixed term, and continue to act as though the contract still bound them after the term has expired. In such a case the court may infer that the parties have agreedto renew the express contract for another term. Express andimplied contracts are both contracts in the true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct. Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, it follows that the distinction between express and implied contracts has every little importance, even if it can be said to exist atfound absolutely no substance in the argument of the appellants to assail the finding of the High Court that the plaintiff bad supplied the good- on its own account to the defendants and that plaintiffs partner Babalal had handed over the Patti No. 12 (Bijak) Ext. 85 to the defendants at their ace of business at Katni alongwith the two Railway Receipts. The High Court has further found that the subsequent Railway Receipts were sent by registered post by the plaintiff and in several letters and telegrams the plaintiff demanded the payment of the price of the goods supplied from the defendants. No where Rahim was justifiably in the picture. The High Court has further pointed out the reason as to why about 501 bags of tobacco were supplied from the warehouse of Manavi who became the consignor in the several Railway Receipts, Manavi supplied the goods on plaintiffs account. It has further been found that the cheques drawn by the defendants in the name of Rahim were all endorsed by him in favour of the plaintiff and ultimately to the knowledge of the defendants the payment of the part of the price was by the defendants to the plaintiff. No goods were supplied on account of Rahim. No part payment was really and actually made to him and the defendants were liable to pay the balance of price to the plaintiff.On the facts found, there, is no difficulty in assuming or even inferring that initially the express contract for supply of the goods was between the defendants and Rahim. The fact whether Rahim acted as the plaintiffs agent or the defendants is immaterial. What is clear is that the orders placed with Rahim were in fact executed by the plaintiff by supply of goods to the defendants. It was so done on account of the plaintiff from its own warehouse as well as from Manavis warehouse. Defendants by their clear conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the plaintiff demanding the money from them on the assertion that the goods were despatched by the plaintiff and the defendants should pay the money, clearly showed that a direct contract which in law is called an implied contract by conduct was brought about between them. Whatever may be the jural relationship between the plaintiff and Rabim, Rahim and the defendants and in whatever manner be acted as a go-between man, between the plaintiff and the defendants, what is clear is that eventually and finally the supply of the goods by the plaintiff was to the defendant s on its own account and not on account of Rahim. The defendants clearly and unerringly accepted the goods as such and became liable to pay the whole of the price directly to the plaintiff. A part was paid and the liability to pay the balance was definitely incurred by them. | 0 | 2,975 | 1,235 | ### 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:
of the plaintiff is that it had supplied 630 bags of tobacco to the defendants; received only a part of its price and the balance of about Rs. 90, 000/- remained due. It is true that no express contract, as understood in law, was pleaded in the plaint. But what was clearly pleaded was supply of goods by the plaintiff on its own account; acceptance of them by the defendants as such; part payment to the plaintiff and the balance remaining due to it. The case pleaded, therefore, was, as it is called in- law, an implied contract brought about by the conduct of the parties, namely, the supply of the goods by the plaintiff and their acceptance by the defendants. In the 5th paragraph of the plain t, extracted above, what was stated was that the transaction of supply of goods by the plaintiff to the defendants was brought about through the instrumentality of Rahim as the defendants were his old customers and Rahim prevailed upon the plaintiff t o supply the goods (on credit) to them. He helped the plaintiff in the recovery of their dues from the defendants to some extent. The plaintiff was entitled for the recovery of the balance. It was thus a pleading of direct contract of sale between the plaintiff and the defendants brought about by their conduct. A contract of sale means an agreement to sell or sale.It is not necessary to encumber this judgment with unnecessary citations of the case law on the point. We may with advantage only quote a passage from Chitty on Contracts, twenty-third edition, pages 9-10, para 12:"Express and implied contracts. Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is, permitted to board a bus; from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination. There may also be an implied contract when the parties make an express contract to last for a fixed term, and continue to act as though the contract still bound them after the term has expired. In such a case the court may infer that the parties have agreedto renew the express contract for another term. Express andimplied contracts are both contracts in the true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct. Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, it follows that the distinction between express and implied contracts has every little importance, even if it can be said to exist at all."8. We found absolutely no substance in the argument of the appellants to assail the finding of the High Court that the plaintiff bad supplied the good- on its own account to the defendants and that plaintiffs partner Babalal had handed over the Patti No. 12 (Bijak) Ext. 85 to the defendants at their ace of business at Katni alongwith the two Railway Receipts. The High Court has further found that the subsequent Railway Receipts were sent by registered post by the plaintiff and in several letters and telegrams the plaintiff demanded the payment of the price of the goods supplied from the defendants. No where Rahim was justifiably in the picture. The High Court has further pointed out the reason as to why about 501 bags of tobacco were supplied from the warehouse of Manavi who became the consignor in the several Railway Receipts, Manavi supplied the goods on plaintiffs account. It has further been found that the cheques drawn by the defendants in the name of Rahim were all endorsed by him in favour of the plaintiff and ultimately to the knowledge of the defendants the payment of the part of the price was by the defendants to the plaintiff. No goods were supplied on account of Rahim. No part payment was really and actually made to him and the defendants were liable to pay the balance of price to the plaintiff.On the facts found, there, is no difficulty in assuming or even inferring that initially the express contract for supply of the goods was between the defendants and Rahim. The fact whether Rahim acted as the plaintiffs agent or the defendants is immaterial. What is clear is that the orders placed with Rahim were in fact executed by the plaintiff by supply of goods to the defendants. It was so done on account of the plaintiff from its own warehouse as well as from Manavis warehouse. Defendants by their clear conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the plaintiff demanding the money from them on the assertion that the goods were despatched by the plaintiff and the defendants should pay the money, clearly showed that a direct contract which in law is called an implied contract by conduct was brought about between them. Whatever may be the jural relationship between the plaintiff and Rabim, Rahim and the defendants and in whatever manner be acted as a go-between man, between the plaintiff and the defendants, what is clear is that eventually and finally the supply of the goods by the plaintiff was to the defendant s on its own account and not on account of Rahim. The defendants clearly and unerringly accepted the goods as such and became liable to pay the whole of the price directly to the plaintiff. A part was paid and the liability to pay the balance was definitely incurred by them.9.
### Response:
0
### Explanation:
isalready stated the simple case of the plaintiff is that it had supplied 630 bags of tobacco to the defendants; received only a part of its price and the balance of about Rs. 90, 000/- remained due. It is true that no express contract, as understood in law, was pleaded in the plaint. But what was clearly pleaded was supply of goods by the plaintiff on its own account; acceptance of them by the defendants as such; part payment to the plaintiff and the balance remaining due to it. The case pleaded, therefore, was, as it is called in- law, an implied contract brought about by the conduct of the parties, namely, the supply of the goods by the plaintiff and their acceptance by the defendants. In the 5th paragraph of the plain t, extracted above, what was stated was that the transaction of supply of goods by the plaintiff to the defendants was brought about through the instrumentality of Rahim as the defendants were his old customers and Rahim prevailed upon the plaintiff t o supply the goods (on credit) to them. He helped the plaintiff in the recovery of their dues from the defendants to some extent. The plaintiff was entitled for the recovery of the balance. It was thus a pleading of direct contract of sale between the plaintiff and the defendants brought about by their conduct. A contract of sale means an agreement to sell or sale.It is not necessary to encumber this judgment with unnecessary citations of the case law on the point. We may with advantage only quote a passage from Chitty on Contracts, twenty-third edition, pages 9-10, paraand implied contracts. Contracts may be either express or implied. The difference is not one of legal effect but simply of the way in which the consent of the parties is manifested. Contracts are express when their terms are stated in words by the parties. They are often said to be implied when their terms are not so stated, as, for example, when a passenger is, permitted to board a bus; from the conduct of the parties the law implies a promise by the passenger to pay the fare, and a promise by the operator of the bus to carry him safely to his destination. There may also be an implied contract when the parties make an express contract to last for a fixed term, and continue to act as though the contract still bound them after the term has expired. In such a case the court may infer that the parties have agreedto renew the express contract for another term. Express andimplied contracts are both contracts in the true sense of the term, for they both arise from the agreement of the parties, though in one case the agreement is manifested in words and in the other case by conduct. Since, as we have seen, agreement is not a mental state but an act, an inference from conduct, it follows that the distinction between express and implied contracts has every little importance, even if it can be said to exist atfound absolutely no substance in the argument of the appellants to assail the finding of the High Court that the plaintiff bad supplied the good- on its own account to the defendants and that plaintiffs partner Babalal had handed over the Patti No. 12 (Bijak) Ext. 85 to the defendants at their ace of business at Katni alongwith the two Railway Receipts. The High Court has further found that the subsequent Railway Receipts were sent by registered post by the plaintiff and in several letters and telegrams the plaintiff demanded the payment of the price of the goods supplied from the defendants. No where Rahim was justifiably in the picture. The High Court has further pointed out the reason as to why about 501 bags of tobacco were supplied from the warehouse of Manavi who became the consignor in the several Railway Receipts, Manavi supplied the goods on plaintiffs account. It has further been found that the cheques drawn by the defendants in the name of Rahim were all endorsed by him in favour of the plaintiff and ultimately to the knowledge of the defendants the payment of the part of the price was by the defendants to the plaintiff. No goods were supplied on account of Rahim. No part payment was really and actually made to him and the defendants were liable to pay the balance of price to the plaintiff.On the facts found, there, is no difficulty in assuming or even inferring that initially the express contract for supply of the goods was between the defendants and Rahim. The fact whether Rahim acted as the plaintiffs agent or the defendants is immaterial. What is clear is that the orders placed with Rahim were in fact executed by the plaintiff by supply of goods to the defendants. It was so done on account of the plaintiff from its own warehouse as well as from Manavis warehouse. Defendants by their clear conduct of accepting the goods and never repudiating any of the numerous letters and telegrams of the plaintiff demanding the money from them on the assertion that the goods were despatched by the plaintiff and the defendants should pay the money, clearly showed that a direct contract which in law is called an implied contract by conduct was brought about between them. Whatever may be the jural relationship between the plaintiff and Rabim, Rahim and the defendants and in whatever manner be acted as a go-between man, between the plaintiff and the defendants, what is clear is that eventually and finally the supply of the goods by the plaintiff was to the defendant s on its own account and not on account of Rahim. The defendants clearly and unerringly accepted the goods as such and became liable to pay the whole of the price directly to the plaintiff. A part was paid and the liability to pay the balance was definitely incurred by them.
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The Associated Cement Companies Limited,Chaibassa Cement Vs. Their Workmen | have dealt with the case irrespective of and apart from reported decisions, because there is no decision which really covers the point in controversy before us. Learned counsel for the appellant has referred to the decisions in Hoyle v. Oram (1862) 12 CB (NS) 124 : 142 ER 1090 and Coles v. Dicknson, (1864) 16 CB (NS) 604; 143 ER 1264. The question in the first case was if the appellants there were liable to be convicted of an offence against the Bleaching Works Act, 23 and 24 Vict. c. 78 in employing a child without a school-masters certificate. It was held that a child employed on the premises where the bleaching, dyeing and finishing were performed was employed in an incidental printing process within the second section of 8 and 9 Vict. c. 29; and that the place where he was so employed formed part of the establishment where the chief process of printing was carried on within the meaning of that Act. The decision proceeded mainly on the words of the statute; but Earle C. J. said : It appears that the works at Mayfield having some year ago become inadequate, by reason of the increase of the business and by the deterioration and deficiency of the water of the river Medlock, the appellants transferred part of their works to Sandy Vale : but that the principal part of the work continued to be carried on at Mayfield, which was the principal seat of the firm. In a commercial sense, therefore, Sandy Vale clearly was part of one entire establishment. It was contended for the respondent that the statute did not mean forming part in a commercial sense, but in a popular and local sense. But I see no reason for confining the meaning to local proximity. The whole substantially forms one establishment. In the second case the question was this : by the 73rd section of 7 and 8 Vict. c. 15 premises which are used solely for the manufacture of paper were excluded from the operation of the Factory Acts; there were two mills, one at Manchester and the other in Hertfodshire. The Manchester mill prepared what was called half-stuff which was sent to the mill in Hertfordshire to be manufactured into paper, and the question was if the Manchester mill was exempted from the operation of the Factory Acts. The answer given was in the affirmative. It was stated that each step in the process was a step in the manufacture of paper, and the distance between the two places where the several parts were carried on was wholly immaterial in view of the words of the statute. 19. The last decision to which out attention has been drawn is the American decision in (1950) 28 ALR, 2d. 272. This decision is perhaps more in point as it related to unemployment compensation. The statute in that case provided that an individual losing his employment because of a strike or other labour dispute should be disqualified during its process at the establishment in which he is or was employed. The claimants there had been employed at a Minnesota automobile assembly plant which was partially shut down because of a lack of parts due to a strike at a manufacturing plant owned and operated by the same corporation in Michigan. The Minnesota Supreme Court to which an application was made for a certiorari to review a decision of the director of the division of employment and security reviewed the tests which have generally been applied for determining what is meant by the term establishment within the meaning of the statute concerned, it pointed out that there was no uniformity of decision on the question and it was not possible to lay down an absolute or invariable test. The decision was based on the broader ground that the tests of functional integrality, general unity and physical proximity should all be taken into consideration in determining the ultimate question of whether a factory, plant or unit of a larger industry is a separate establishment within the meaning of the employment and security law. The test which was emphasized in that case was the test of the unity of employment and on that footing it was found that the evidence was ample to support the directors finding that the Minnesota plant was a separate establishment. 20. We do not think that these decisions carry the matter any further than what we have explained in earlier paragraphs of this judgment. We must have regard to the provisions of the statute under which the question falls to be considered; if the statute itself says what is one establishment, then there is no difficulty.If the statute does not, however, say what constitutes one establishment, then the usual tests have to be applied to determine the true relation between the parts, branches etc., namely, whether they constitute one integrated whole or not. No particular test can be adopted as an absolute test in all cases of this type and the word establishment is not to be given the sweeping definition of one organisation of which it is capable, but rather is to be construed in the ordinary, business or commercial sense. 21. For the reasons which we have already given, we are of the view that the learned Chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishments. In our view, they constituted one establishment within the meaning of cl. (iii) of S. 25E of the Act.It was conceded on behalf of the respondent workmen that the lay-off in the factory was due to the non-supply of limestone by reason of the strike in the limestone quarry and the strike was decided on by the same Union which consisted of the workmen at the factory and the quarry. That being the position, the disqualification in cl. (iii) aforesaid clearly applied and the workmen at the factory were not entitled to claim lay-off compensation. | 1[ds]We do not think that this contention is correct and we shall presently deal with it. We propose, however, to examine first the relation between the limestone quarry at Rajanka and the cement factory at Jhinkpani in the light of the evidence given before the Tribunal and the findings arrived at by it; because they will show the process of reasoning by which the Tribunal came to its final conclusionIt was not disputed that the Company owned the limestone quarry as also the factory and there was unity of ownershipIt is worthy of note here that the Union itself gave notice to the Manager of the factory with regard to the intended strike in the limestone quarry. The geographical proximity of the limestone quarry was never in dispute. It was adjacent to the factory, being situate within a radius of about a mile. As to general unity of purpose and functional integrality, this was also not seriously in dispute. Mr. Dongray said that limestone was the principal raw material for the manufacture of cement and the cement factory at Jhinkpani depended exclusively on the supply of limestone from the quarry at Rajanka. His evidence no doubt disclosed that some excess limestone was sent to the factory at Khelari as wellThe Judgment of the Tribunal itself shows that the final conclusion was arrived at by a process of reasoning which involved a consideration of several provisions of the Act and some provisions of the Mines Act, 1952. The Tribunal accepted a major portion, if not all, of the evidence of Mr. Dongray; but it felt compelled to hold against the appellant despite that evidence by reason of an anomalous position which, it though, would arise if the factory and the quarry were held to be one establishmentThat question was not a pure question of fact, as it involved a consideration of the tests which should be applied in determining whether a particular unit is part of a bigger establishment. Indeed, it is true that for the application of the tests certain preliminary facts must be found; but the final conclusion to be drawn therefrom is not a mere question of factLearned counsel for the respondent is not, therefore, justified in asking us to adopt the short cut of disposing of the appeal on the footing that a finding of fact should not be disturbed in an appeal by special leave. In this case we cannot relieve ourselves of the task of determining the true scope and effect of cl. (iii) of S. 25E by adopting the short cut suggested by learned counselIt uses the word establishment only. We agree, however, that if S. 25E is read with S. 25C and the definition of lay-off in S. 2(kkk) of the Act, as it must be read, the word establishment in S. 25E has reference to an industrial establishmenWe do not think that there is any warrant for the assumption.The Explanation only gives the meaning of the expression industrial establishment for certain sections of the Act; it does not purport to lay down any test as to what constitutes one establishment. Let us take, for example, a factory which has different departments in which manufacturing process are carried on with the aid of power.Each department, if it employs ten or more workmen, is a factory within the meaning of cl. (m) of S. 2 of the Factories Act 1948; so is the entire factory where 1000 workmen may be employed. The Explanation merely states that an under-taking of the nature of a factory as defined in cl. (m) of S. 2 of the Factories Act; 1948 is an industrial establishment. It has no bearing on the question if in the example taken the factory as a whole or each department thereof should be treated as one establishment.That question must be determined on other considerations, because the Explanation does not deal with the question of one establishment. In our view, the true scope and effect of the Explanation is that it explains what category, factory, mine or plantation, come within the meaning of the expression industrial establishment; it does not deal with the question as to what constitutes one establishment and lays down no tests for determining that question. We cannot, therefore, accept the argument of learned counsel for the respondent that a factory and a mine, a mine which supplies the raw material to the factory, can never be one establishment under the Act; that we do not think is the effect of the Explanation to S. 25AIt is perhaps impossible to lay down any one tests as an absolute and invariable tests for all cases. The real purpose of these tests is to find out the true relation between the parts, branches, units, etc. If in their true relation they constitute one integrated whole, we say that the contrary they do not constitute one integrated whole, each unit is then a separate unit. How the relation between the units will be judged must depend on the facts proved, having regard to the scheme and object of the statute which gives the right of unemployment compensation and also prescribes a disqualification therefor. Thus, in one case the unity of ownership, management and control may be important test; in another case functional integrality or general unity may be the important test; and in still another case, the important test may be the unity of employment. Indeed, in a large number of cases several tests may fall for consideration at the same time12. Fortunately for us, such complexities do not present themselves in the case under our consideration. We do not say that it is usual in industrial practice to have one establishment consisting of a factory and a mine; but we have to remember the special facts of this case where the adjacent limestone quarry supplies the raw material, almost exclusively, to the factory; the quarry is indeed a feeder of the factory and without limestone from the quarry, the factory cannot function. Ours is a case where all the tests are fulfilled, as shown from the evidence given on behalf of the appellant to which we have earlier referred.There are unity of ownership, unity of management, supervision and control, unity of finance and employment, unity of labour and conditions of service of workmen, functional integrality, general unity of purpose and geographical proximity. We shall presently deal with the legal difficulties at which the Tribunal has hinted and which have been elaborated by learned counsel for the respondent.But apart from them, the only fair conclusion from the facts proved in the case is that the Chaibasa Cement Works consisting of the factory and the limestone quarry form one establishment. The existence of two sets of Standing Orders and a separate attendance register for the limestone quarry have already been adverted to.They have been sufficiently explained by Mr. Dongray, particularly the existence of two sets of Standing Orders by reason of the statutory requirement of approval by different authorities - one set by the Labour Commissioner, Bihar, and the other by the relevant Central authorityWe are unable to accept this argument as correct. We do not think that S.17 of the Mines Act, 1952 has any relevance to the question whether the limestone quarry was part of a bigger establishment. It prescribes the appointment of a Manager for purposes of the Mines Act, 1952 and does not deal with the question of one establishment within the meaning of cl. (iii) of S. 25E of the Act.The fact that the quarry Manager worked under the over-all control and supervision of Mr. Dongray showed, on the facts proved in this case, just the contrary of what learned counsel for the respondent has contended; it showed that the factory and the quarry were treated as one establishment13. We proceed now to consider the legal difficulties which according to learned counsel for the respondent stand in the way of treating the limestone quarry and the factory as one establishmentThe first difficulty is said to arise out of S. 17 of the Mines Act, 195215. The second difficulty is said to arise out of certain provisions of the Act which relate to the constitution of Boards of Conciliation, Courts of Inquiry, Labour Courts and Tribunals and the reference of industrial disputes to these bodies for settlement, in inquiry or adjudicationSub-sections (2) and (3) we need not reproduce, because for the purpose of this appeal, the argument is the same, which is that if a proceeding is pending before a Central Tribunal, say in respect of the limestone quarry, there will be difficulty in applying the provisions of S. 33 in respect of workmen in the factory over which the Central Tribunal will have no jurisdiction. The Industrial Tribunal did not specifically refer to these provisions, but perhaps, had them in mind when it said that an anomalous position would arise if the factory and the quarry were treated as one establishment16. We have given our most earnest consideration to these arguments, but are unable to hold that they should prevail. It is indeed true that in the matter of constitution of Boards of Conciliation Courts of Inquiry, Labour Courts and Tribunals and also in the matter of reference of industrial dispute to them, and perhaps for certain other limited purposes, the Act gives jurisdiction to two distinct authorities, the Central Government in respect of the limestone quarry and the State Government in respect of the factory.The short question is - does this duality of jurisdiction, dichotomy one may call it, necessarily imply that for all purpose of the Act, and particularly for payment of unemployment compensation as per the provisions in Ch. VA, the factory and the quarry must be treated as separate establishments. We are unable to find any such necessary implication. There is no provision in the Act which says that the existence of two jurisdictions has the consequence contended for by learned counsel for the respondent; nor do we find anything in the provisions creating two jurisdictions which by reason of the principle underlying them or by their very nature give rise to an implication in law that the existence of two jurisdiction means the existence of two separate establishments.On the contrary, such an implication or inference will be at variance with the scheme and object of unemployment compensation as provided for by the provisions in Ch. VA of the Act. We have pointed out earlier that the object of unemployment compensation is to relieve hardship caused by involuntary unemployment, that is, unemployment not due to any fault of the employees. If in the ordinary business sense the industrial establishment in one, a lay-off of some of the workmen in that establishment as a result of a strike by some other workmen in the same establishment cannot be characterised as involuntary unemployment.To hold that such an establishment must be divided into two separate parts by reason of the existence of two jurisdictions is to import an artificiality for which we think there is no justification in the provisions of the Act17. Nor do we think that Ss. 18(3) and 33 present any real difficulty. Section 18(3) clearly contemplates a settlement or an award which is binding on a part of the establishment. It says so in express terms. If, therefore, in the case before us there is a settlement or award in respect of the limestone quarry it will be binding in the circumstances mentioned in the sub-section, on the workmen in that part of the establishment which is the limestone quarry. Similarly, settlement or award in respect of the factory will be binding on the workmen of the factory. Section 33 so far as it is relevant for the argument now under consideration, is in two parts. Sub-section (1) relates to a matter connected with the dispute in respect of which a proceeding is pending. Sub-section (2) relates to a matter not connected with the dispute in respect of which the proceeding is pending. In one case permission of the authority before which the proceedings is pending has to be obtained for punishing etc; in the other case, an application for approval of the action taken by the employer has to be made. We see no difficulty in applying S. 33 in a case like the one before us.For workmen in the mine, the authority will be the one appointed by the Central Government; for the factory, the authority will be that appointed by the State Government. This is the same arguments as the argument of two jurisdictions in another form. The assumption is that there cannot be two jurisdictions for two parts of one establishment.This argument is valid, if the assumption is correct. If, however, there is no warrant for the assumption, as we have held there is none, then the argument has no legs to stand upon18. So far we have dealt with the case irrespective of and apart from reported decisions, because there is no decision which really covers the point in controversy before us20. We do not think that these decisions carry the matter any further than what we have explained in earlier paragraphs of this judgment. We must have regard to the provisions of the statute under which the question falls to be considered; if the statute itself says what is one establishment, then there is no difficulty.If the statute does not, however, say what constitutes one establishment, then the usual tests have to be applied to determine the true relation between the parts, branches etc., namely, whether they constitute one integrated whole or not. No particular test can be adopted as an absolute test in all cases of this type and the word establishment is not to be given the sweeping definition of one organisation of which it is capable, but rather is to be construed in the ordinary, business or commercial sense21. For the reasons which we have already given, we are of the view that the learned Chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishments. In our view, they constituted one establishment within the meaning of cl. (iii) of S. 25E of the ActThat being the position, the disqualification in cl. (iii) aforesaid clearly applied and the workmen at the factory were not entitled to claim lay-off compensation. | 1 | 8,418 | 2,622 | ### Instruction:
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have dealt with the case irrespective of and apart from reported decisions, because there is no decision which really covers the point in controversy before us. Learned counsel for the appellant has referred to the decisions in Hoyle v. Oram (1862) 12 CB (NS) 124 : 142 ER 1090 and Coles v. Dicknson, (1864) 16 CB (NS) 604; 143 ER 1264. The question in the first case was if the appellants there were liable to be convicted of an offence against the Bleaching Works Act, 23 and 24 Vict. c. 78 in employing a child without a school-masters certificate. It was held that a child employed on the premises where the bleaching, dyeing and finishing were performed was employed in an incidental printing process within the second section of 8 and 9 Vict. c. 29; and that the place where he was so employed formed part of the establishment where the chief process of printing was carried on within the meaning of that Act. The decision proceeded mainly on the words of the statute; but Earle C. J. said : It appears that the works at Mayfield having some year ago become inadequate, by reason of the increase of the business and by the deterioration and deficiency of the water of the river Medlock, the appellants transferred part of their works to Sandy Vale : but that the principal part of the work continued to be carried on at Mayfield, which was the principal seat of the firm. In a commercial sense, therefore, Sandy Vale clearly was part of one entire establishment. It was contended for the respondent that the statute did not mean forming part in a commercial sense, but in a popular and local sense. But I see no reason for confining the meaning to local proximity. The whole substantially forms one establishment. In the second case the question was this : by the 73rd section of 7 and 8 Vict. c. 15 premises which are used solely for the manufacture of paper were excluded from the operation of the Factory Acts; there were two mills, one at Manchester and the other in Hertfodshire. The Manchester mill prepared what was called half-stuff which was sent to the mill in Hertfordshire to be manufactured into paper, and the question was if the Manchester mill was exempted from the operation of the Factory Acts. The answer given was in the affirmative. It was stated that each step in the process was a step in the manufacture of paper, and the distance between the two places where the several parts were carried on was wholly immaterial in view of the words of the statute. 19. The last decision to which out attention has been drawn is the American decision in (1950) 28 ALR, 2d. 272. This decision is perhaps more in point as it related to unemployment compensation. The statute in that case provided that an individual losing his employment because of a strike or other labour dispute should be disqualified during its process at the establishment in which he is or was employed. The claimants there had been employed at a Minnesota automobile assembly plant which was partially shut down because of a lack of parts due to a strike at a manufacturing plant owned and operated by the same corporation in Michigan. The Minnesota Supreme Court to which an application was made for a certiorari to review a decision of the director of the division of employment and security reviewed the tests which have generally been applied for determining what is meant by the term establishment within the meaning of the statute concerned, it pointed out that there was no uniformity of decision on the question and it was not possible to lay down an absolute or invariable test. The decision was based on the broader ground that the tests of functional integrality, general unity and physical proximity should all be taken into consideration in determining the ultimate question of whether a factory, plant or unit of a larger industry is a separate establishment within the meaning of the employment and security law. The test which was emphasized in that case was the test of the unity of employment and on that footing it was found that the evidence was ample to support the directors finding that the Minnesota plant was a separate establishment. 20. We do not think that these decisions carry the matter any further than what we have explained in earlier paragraphs of this judgment. We must have regard to the provisions of the statute under which the question falls to be considered; if the statute itself says what is one establishment, then there is no difficulty.If the statute does not, however, say what constitutes one establishment, then the usual tests have to be applied to determine the true relation between the parts, branches etc., namely, whether they constitute one integrated whole or not. No particular test can be adopted as an absolute test in all cases of this type and the word establishment is not to be given the sweeping definition of one organisation of which it is capable, but rather is to be construed in the ordinary, business or commercial sense. 21. For the reasons which we have already given, we are of the view that the learned Chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishments. In our view, they constituted one establishment within the meaning of cl. (iii) of S. 25E of the Act.It was conceded on behalf of the respondent workmen that the lay-off in the factory was due to the non-supply of limestone by reason of the strike in the limestone quarry and the strike was decided on by the same Union which consisted of the workmen at the factory and the quarry. That being the position, the disqualification in cl. (iii) aforesaid clearly applied and the workmen at the factory were not entitled to claim lay-off compensation.
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we need not reproduce, because for the purpose of this appeal, the argument is the same, which is that if a proceeding is pending before a Central Tribunal, say in respect of the limestone quarry, there will be difficulty in applying the provisions of S. 33 in respect of workmen in the factory over which the Central Tribunal will have no jurisdiction. The Industrial Tribunal did not specifically refer to these provisions, but perhaps, had them in mind when it said that an anomalous position would arise if the factory and the quarry were treated as one establishment16. We have given our most earnest consideration to these arguments, but are unable to hold that they should prevail. It is indeed true that in the matter of constitution of Boards of Conciliation Courts of Inquiry, Labour Courts and Tribunals and also in the matter of reference of industrial dispute to them, and perhaps for certain other limited purposes, the Act gives jurisdiction to two distinct authorities, the Central Government in respect of the limestone quarry and the State Government in respect of the factory.The short question is - does this duality of jurisdiction, dichotomy one may call it, necessarily imply that for all purpose of the Act, and particularly for payment of unemployment compensation as per the provisions in Ch. VA, the factory and the quarry must be treated as separate establishments. We are unable to find any such necessary implication. There is no provision in the Act which says that the existence of two jurisdictions has the consequence contended for by learned counsel for the respondent; nor do we find anything in the provisions creating two jurisdictions which by reason of the principle underlying them or by their very nature give rise to an implication in law that the existence of two jurisdiction means the existence of two separate establishments.On the contrary, such an implication or inference will be at variance with the scheme and object of unemployment compensation as provided for by the provisions in Ch. VA of the Act. We have pointed out earlier that the object of unemployment compensation is to relieve hardship caused by involuntary unemployment, that is, unemployment not due to any fault of the employees. If in the ordinary business sense the industrial establishment in one, a lay-off of some of the workmen in that establishment as a result of a strike by some other workmen in the same establishment cannot be characterised as involuntary unemployment.To hold that such an establishment must be divided into two separate parts by reason of the existence of two jurisdictions is to import an artificiality for which we think there is no justification in the provisions of the Act17. Nor do we think that Ss. 18(3) and 33 present any real difficulty. Section 18(3) clearly contemplates a settlement or an award which is binding on a part of the establishment. It says so in express terms. If, therefore, in the case before us there is a settlement or award in respect of the limestone quarry it will be binding in the circumstances mentioned in the sub-section, on the workmen in that part of the establishment which is the limestone quarry. Similarly, settlement or award in respect of the factory will be binding on the workmen of the factory. Section 33 so far as it is relevant for the argument now under consideration, is in two parts. Sub-section (1) relates to a matter connected with the dispute in respect of which a proceeding is pending. Sub-section (2) relates to a matter not connected with the dispute in respect of which the proceeding is pending. In one case permission of the authority before which the proceedings is pending has to be obtained for punishing etc; in the other case, an application for approval of the action taken by the employer has to be made. We see no difficulty in applying S. 33 in a case like the one before us.For workmen in the mine, the authority will be the one appointed by the Central Government; for the factory, the authority will be that appointed by the State Government. This is the same arguments as the argument of two jurisdictions in another form. The assumption is that there cannot be two jurisdictions for two parts of one establishment.This argument is valid, if the assumption is correct. If, however, there is no warrant for the assumption, as we have held there is none, then the argument has no legs to stand upon18. So far we have dealt with the case irrespective of and apart from reported decisions, because there is no decision which really covers the point in controversy before us20. We do not think that these decisions carry the matter any further than what we have explained in earlier paragraphs of this judgment. We must have regard to the provisions of the statute under which the question falls to be considered; if the statute itself says what is one establishment, then there is no difficulty.If the statute does not, however, say what constitutes one establishment, then the usual tests have to be applied to determine the true relation between the parts, branches etc., namely, whether they constitute one integrated whole or not. No particular test can be adopted as an absolute test in all cases of this type and the word establishment is not to be given the sweeping definition of one organisation of which it is capable, but rather is to be construed in the ordinary, business or commercial sense21. For the reasons which we have already given, we are of the view that the learned Chairman of the Industrial Tribunal wrongly held that the limestone quarry at Rajanka and the factory at Jhinkpani were separate establishments. In our view, they constituted one establishment within the meaning of cl. (iii) of S. 25E of the ActThat being the position, the disqualification in cl. (iii) aforesaid clearly applied and the workmen at the factory were not entitled to claim lay-off compensation.
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AGGARWAL ASSOCIATES (PROMOTERS) LIMITED Vs. DELHI DEVELOPMENT AUTHORITY | us if you have got any objection in the matter so that necessary steps are taken in this matter. 6. As the dispute continued between the parties without any solution in sight, the appellant filed Writ Petition No. 2388 of 1994. It was alleged in the petition that MCD, Respondent 2, was claiming title to the plot which had been auctioned by DDA in favour of the appellant. That DDA did not inform the intending buyers about the dispute between DDA and MCD. That the appellant was justified in his expectation that the property which had been auctioned by DDA would be free from encumbrances. In view of the dispute between MCD and DDA, DDA could not hand over the vacant possession of the property to the appellant. It was further stated that since DDA was not in a position to hand over the peaceful possession of the plot, the auction held by DDA could not be implemented. The appellant in addition to the other reliefs claimed that he was entitled to refund of the earnest money. 7. DDA contested the writ petition and inter alia pleaded that the auction conditions provided for forfeiture of the earnest money in case the bidder did not act in consonance with the terms and conditions of the auction-notice. DDA was always ready to hand over possession of the property and, as a matter of fact, the appellant by letter dated 16-4-1994 asked for extension of time by 45 days for the payment of the balance amount. The possession of the plot was always with DDA and in terms of Clause 2(viii) of the terms and conditions of the auction, the auction was liable to be cancelled and DDA was entitled to pass an order forfeiting the earnest money. 8. The High Court dismissed the writ petition by observing: In the instant case, the petitioner Aggarwal Associates must have inspected the site before bidding at the auction. DDA was bound to deliver possession of the property only on the petitioners depositing the balance 75% of the bid money. Admittedly, the petitioner had not deposited the amount. The petitioner wanted to project a case that DDA was not in a position to put the petitioner in possession. It is merely a make-believe affair. The case of the petitioner cannot be accepted. Therefore, the reliefs prayed for by the petitioner cannot be granted in law. The writ petition, accordingly, stands dismissed. There shall be no order as to costs. 9. To hold that the appellant was not entitled to the refund of the earnest money, the High Court placed reliance on two judgments of this Court, namely, Delhi Development Authority v. Grihsthapana Coop. Group Housing Society Ltd., 1995 Supp (1) SCC 751 and Chandigarh Housing Board v. Avtar Singh, (1995) 5 SCC 313. 10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties. 11. The counsel in the end prayed that in equity and fairness the earnest money deposited by him should be refunded to him. We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected. | 0[ds]10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties.We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected. | 0 | 2,411 | 540 | ### 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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us if you have got any objection in the matter so that necessary steps are taken in this matter. 6. As the dispute continued between the parties without any solution in sight, the appellant filed Writ Petition No. 2388 of 1994. It was alleged in the petition that MCD, Respondent 2, was claiming title to the plot which had been auctioned by DDA in favour of the appellant. That DDA did not inform the intending buyers about the dispute between DDA and MCD. That the appellant was justified in his expectation that the property which had been auctioned by DDA would be free from encumbrances. In view of the dispute between MCD and DDA, DDA could not hand over the vacant possession of the property to the appellant. It was further stated that since DDA was not in a position to hand over the peaceful possession of the plot, the auction held by DDA could not be implemented. The appellant in addition to the other reliefs claimed that he was entitled to refund of the earnest money. 7. DDA contested the writ petition and inter alia pleaded that the auction conditions provided for forfeiture of the earnest money in case the bidder did not act in consonance with the terms and conditions of the auction-notice. DDA was always ready to hand over possession of the property and, as a matter of fact, the appellant by letter dated 16-4-1994 asked for extension of time by 45 days for the payment of the balance amount. The possession of the plot was always with DDA and in terms of Clause 2(viii) of the terms and conditions of the auction, the auction was liable to be cancelled and DDA was entitled to pass an order forfeiting the earnest money. 8. The High Court dismissed the writ petition by observing: In the instant case, the petitioner Aggarwal Associates must have inspected the site before bidding at the auction. DDA was bound to deliver possession of the property only on the petitioners depositing the balance 75% of the bid money. Admittedly, the petitioner had not deposited the amount. The petitioner wanted to project a case that DDA was not in a position to put the petitioner in possession. It is merely a make-believe affair. The case of the petitioner cannot be accepted. Therefore, the reliefs prayed for by the petitioner cannot be granted in law. The writ petition, accordingly, stands dismissed. There shall be no order as to costs. 9. To hold that the appellant was not entitled to the refund of the earnest money, the High Court placed reliance on two judgments of this Court, namely, Delhi Development Authority v. Grihsthapana Coop. Group Housing Society Ltd., 1995 Supp (1) SCC 751 and Chandigarh Housing Board v. Avtar Singh, (1995) 5 SCC 313. 10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties. 11. The counsel in the end prayed that in equity and fairness the earnest money deposited by him should be refunded to him. We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected.
### Response:
0
### Explanation:
10. We agree with the view taken by the High Court. Before complying with the terms and conditions provided in the auction-notice the appellant tried to take possession of the property by putting up his board at the site. The appellant could claim possession of the property only after collecting the allotment-cum-demand letter and on deposit of 75% of the balance bid money. Admittedly, the appellant had not deposited the amount and instead started projecting the case as if DDA was not in a position to deliver the possession of the auctioned property to him as DDA had already transferred the possession of the auctioned property to MCD. The appellant could take all these pleas only after performing his part of the obligation under the terms and conditions of the auction-notice. DDA in its written statement before the High Court had taken a categorical stand that the appellant did not act in consonance with the terms and conditions of the auction-notice. That DDA was in possession of the plot and was always ready to hand over possession of the property provided the appellant complied with the terms and conditions of the auction-notice. We are of the considered view that since the appellant had failed to comply with the terms and conditions of auction, he had no right to claim either the possession or the allotment of the plot in his favour. The plot was sold to him on an as-is-where-is basis. It had been made clear in the terms and conditions of the auction that it would be presumed that the intending purchaser has inspected the site and had familiarised himself with the prevalent site conditions in all respects before giving the bid. The appellant cannot be heard to say that he did not familiarise himself with the prevalent conditions which existed on the site. Instead of collecting allotment-cum-demand letter and paying the balance amount the appellant tried to enter into possession of the property by erecting its board at the site. The appellant did not have the right to enter into possession of the property before collecting the allotment-cum-demand letter and the payment of the balance amount. Since the appellant failed to comply with the terms and conditions of the auction-notice there was no concluded contract between the parties.We do not find any merit in this submission. As the transaction fell through by reason of the default or failure of the purchaser, the earnest money could be forfeited as per terms and conditions of the auction-notice. The terms agreed between the parties have to be considered while considering the question of the forfeiture of the earnest money. On facts we find that the appellant tried to play smart to take possession of the property without getting the demand-cum-allotment letter in his favour and the payment of the balance bid money. A person who pleads for equity has to act fairly. Since the appellant did not act fairly, he is not entitled to any sympathetic consideration of his demand for refund of the earnest money. The prayer is rejected.
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Richardson & Cruddas (1972) Limited & Others Vs. Association of Engineering Workers & Another | quantum of punishment observed thus :-"taking into account this fact wherein the Tribunal has to exercise the power and for misconduct of simple nature the punishment is definitely disproportionate. Therefore, I will have to set aside the extreme punishment of dismissal of the workman and also taking into account the past service record of the workman, and also taking into consideration he was a football player for the company and the company at present stopped sending the football players at the national level, they want to dismiss this workman as they had withdrawn the team of football player and they do not want to keep this man in the company they must have taken this decision to remove him from service. Moreover, the punishment awarded to the workman is shockingly disproportionate for the simple misconduct of absentism for which the proper explanation was given by the workman. Hence I set aside the punishment of dismissal and instead of dismissal he should have been given reinstatement with 50% backwages which could meet the ends of justice."The Labour Court accordingly passed the Award.6.Writ Petition No. 1167 of 1995 filed by the employer came up for admission on September 21,1993. The learned Judge issued rule and refused the interim relief prayed for by the petitioner. The learned Judge in paragraph 6 of his order observed thus:-"Apart from the above, the standing orders show that there are several acts and omissions which constitute misconduct, some of them are really very serious such as taking or giving a bribe or any illegal gratification; engaging in trade, business or occupation; within the premises of the establishment outside the scope of his duties; drunkenness, riotous, disorderly or indecent behavior or assault or threat of assault on the premises of the establishment, gambling within the premises of establishment or smoking in the premises of the establishment where smoking is prohibited. The punishments which can be imposed range from warning, censuring and suspension to dismissal. The maximum penalty of dismissal resulted in the economic death of an ordinary workman like a coolie in the present case. Prima facie, therefore, I have no doubt in my mind that the punishment of dismissal, which is a very harsh penalty, was shockingly disproportionate to the alleged misconduct. The fact that the poor workman who was a coolie loses about Rs. 1,50,000/- is itself a sufficient punishment to him. Under the circumstances, I find no reason to grant interim relief. Hence interim relief is refused. However, I wish to make it clear that these are my tentative conclusions at the admission stage and I have already expedited the hearing."7.Reading of this order indicates that the learned Single Judge felt that the punishment of dismissal was very harsh and was shockingly disproportionate to the alleged misconduct. He held that the workman loses about Rs. 1,50,000/- by way of backwages and this itself is a punishment.8.The learned Counsel for the petitioner submits that the domestic inquiry conducted by the employer had been found to be fair and proper. The punishment imposed by the employer ought not to have been reduced by the Labour Court. Section 11-A of the Industrial Disputes Act empowers the Labour Court to set aside the order of dismissal or discharge passed against the workman and order reinstatement. A bare reading of this section indicates that the Labour Court can reduce the punishment if it finds that the same was shockingly disproportionate to the misconduct attributed to the workman. This is what precisely done by the Labour Court. We find that the Labour Court had been judicious in its approach in the matter of quantum of punishment to be imposed in the present case on the workman.9.Writ Petition No. 1167 of 1995 was filed by the workman against the Award on April 18,1995 and it came up for admission on July 3,1995. It is true that there is no limitation prescribed under the rules to file the writ petition. The question of delay in filing the writ petition would be taken into consideration by this Court while exercising writ jurisdiction.10.The Labour Court has found that the charge levied by the management stood proved and the employee has also admitted the guilt. The inquiry was held to be fair. However, the Labour Court found that the misconduct alleged did not warrant punishment of dismissal from service, and in these circumstances he ordered reinstatement with continuity in service and 50% backwages. The workman has been given punishment for the misconduct attributed to him. He has been reinstated in service with 50% backwages. He has lost 50% of the backwages and that this punishment is commensurate with the accusation levied against the workman. The learned Counsel for the workman invited our attention to the judgment reported in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, 1980 Labour & Industrial Cases 1004, to contend that the normal rule is that while reinstating the workman in service he should be given full backwages and in the given case where the full backwages are not to be allowed, the circumstances necessitating the departure must be established by the employer. The submission of the learned counsel is not well founded. The Labour Court has not found that the charge levied against the workman was not established. He found that the charge has been established. But he interfered with the order of the employer only on the quantum of punishment. The Labour Court found that the punishment of dismissal from service in the case was shockingly disproportionate to the charge levied against the workman and it was under these circumstances that he ordered reinstatement with continuity in service and 50% backwages. Disallowing of 50% backwages appears to be the punishment imposed by the Labour Court which it thought under the circumstances would meet the end of justice. The Labour Court disallowed 50% of the backwages by way of punishment and we do not think that the imposition of this punishment is not warranted on the proved facts of the case. | 0[ds]We find that the Labour Court had been judicious in its approach in the matter of quantum of punishment to be imposed in the present case on theLabour Court has found that the charge levied by the management stood proved and the employee has also admitted the guilt. The inquiry was held to be fair. However, the Labour Court found that the misconduct alleged did not warrant punishment of dismissal from service, and in these circumstances he ordered reinstatement with continuity in service and 50% backwages. The workman has been given punishment for the misconduct attributed to him. He has been reinstated in service with 50% backwages. He has lost 50% of the backwages and that this punishment is commensurate with the accusation levied against the workman. The learned Counsel for the workman invited our attention to the judgment reported in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, 1980 LabourIndustrial Cases 1004, to contend that the normal rule is that while reinstating the workman in service he should be given full backwages and in the given case where the full backwages are not to be allowed, the circumstances necessitating the departure must be established by the employer. The submission of the learned counsel is not well founded. The Labour Court has not found that the charge levied against the workman was not established. He found that the charge has been established. But he interfered with the order of the employer only on the quantum of punishment. The Labour Court found that the punishment of dismissal from service in the case was shockingly disproportionate to the charge levied against the workman and it was under these circumstances that he ordered reinstatement with continuity in service and 50% backwages. Disallowing of 50% backwages appears to be the punishment imposed by the Labour Court which it thought under the circumstances would meet the end of justice. The Labour Court disallowed 50% of the backwages by way of punishment and we do not think that the imposition of this punishment is not warranted on the proved facts of the case. | 0 | 1,737 | 376 | ### 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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quantum of punishment observed thus :-"taking into account this fact wherein the Tribunal has to exercise the power and for misconduct of simple nature the punishment is definitely disproportionate. Therefore, I will have to set aside the extreme punishment of dismissal of the workman and also taking into account the past service record of the workman, and also taking into consideration he was a football player for the company and the company at present stopped sending the football players at the national level, they want to dismiss this workman as they had withdrawn the team of football player and they do not want to keep this man in the company they must have taken this decision to remove him from service. Moreover, the punishment awarded to the workman is shockingly disproportionate for the simple misconduct of absentism for which the proper explanation was given by the workman. Hence I set aside the punishment of dismissal and instead of dismissal he should have been given reinstatement with 50% backwages which could meet the ends of justice."The Labour Court accordingly passed the Award.6.Writ Petition No. 1167 of 1995 filed by the employer came up for admission on September 21,1993. The learned Judge issued rule and refused the interim relief prayed for by the petitioner. The learned Judge in paragraph 6 of his order observed thus:-"Apart from the above, the standing orders show that there are several acts and omissions which constitute misconduct, some of them are really very serious such as taking or giving a bribe or any illegal gratification; engaging in trade, business or occupation; within the premises of the establishment outside the scope of his duties; drunkenness, riotous, disorderly or indecent behavior or assault or threat of assault on the premises of the establishment, gambling within the premises of establishment or smoking in the premises of the establishment where smoking is prohibited. The punishments which can be imposed range from warning, censuring and suspension to dismissal. The maximum penalty of dismissal resulted in the economic death of an ordinary workman like a coolie in the present case. Prima facie, therefore, I have no doubt in my mind that the punishment of dismissal, which is a very harsh penalty, was shockingly disproportionate to the alleged misconduct. The fact that the poor workman who was a coolie loses about Rs. 1,50,000/- is itself a sufficient punishment to him. Under the circumstances, I find no reason to grant interim relief. Hence interim relief is refused. However, I wish to make it clear that these are my tentative conclusions at the admission stage and I have already expedited the hearing."7.Reading of this order indicates that the learned Single Judge felt that the punishment of dismissal was very harsh and was shockingly disproportionate to the alleged misconduct. He held that the workman loses about Rs. 1,50,000/- by way of backwages and this itself is a punishment.8.The learned Counsel for the petitioner submits that the domestic inquiry conducted by the employer had been found to be fair and proper. The punishment imposed by the employer ought not to have been reduced by the Labour Court. Section 11-A of the Industrial Disputes Act empowers the Labour Court to set aside the order of dismissal or discharge passed against the workman and order reinstatement. A bare reading of this section indicates that the Labour Court can reduce the punishment if it finds that the same was shockingly disproportionate to the misconduct attributed to the workman. This is what precisely done by the Labour Court. We find that the Labour Court had been judicious in its approach in the matter of quantum of punishment to be imposed in the present case on the workman.9.Writ Petition No. 1167 of 1995 was filed by the workman against the Award on April 18,1995 and it came up for admission on July 3,1995. It is true that there is no limitation prescribed under the rules to file the writ petition. The question of delay in filing the writ petition would be taken into consideration by this Court while exercising writ jurisdiction.10.The Labour Court has found that the charge levied by the management stood proved and the employee has also admitted the guilt. The inquiry was held to be fair. However, the Labour Court found that the misconduct alleged did not warrant punishment of dismissal from service, and in these circumstances he ordered reinstatement with continuity in service and 50% backwages. The workman has been given punishment for the misconduct attributed to him. He has been reinstated in service with 50% backwages. He has lost 50% of the backwages and that this punishment is commensurate with the accusation levied against the workman. The learned Counsel for the workman invited our attention to the judgment reported in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, 1980 Labour & Industrial Cases 1004, to contend that the normal rule is that while reinstating the workman in service he should be given full backwages and in the given case where the full backwages are not to be allowed, the circumstances necessitating the departure must be established by the employer. The submission of the learned counsel is not well founded. The Labour Court has not found that the charge levied against the workman was not established. He found that the charge has been established. But he interfered with the order of the employer only on the quantum of punishment. The Labour Court found that the punishment of dismissal from service in the case was shockingly disproportionate to the charge levied against the workman and it was under these circumstances that he ordered reinstatement with continuity in service and 50% backwages. Disallowing of 50% backwages appears to be the punishment imposed by the Labour Court which it thought under the circumstances would meet the end of justice. The Labour Court disallowed 50% of the backwages by way of punishment and we do not think that the imposition of this punishment is not warranted on the proved facts of the case.
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0
### Explanation:
We find that the Labour Court had been judicious in its approach in the matter of quantum of punishment to be imposed in the present case on theLabour Court has found that the charge levied by the management stood proved and the employee has also admitted the guilt. The inquiry was held to be fair. However, the Labour Court found that the misconduct alleged did not warrant punishment of dismissal from service, and in these circumstances he ordered reinstatement with continuity in service and 50% backwages. The workman has been given punishment for the misconduct attributed to him. He has been reinstated in service with 50% backwages. He has lost 50% of the backwages and that this punishment is commensurate with the accusation levied against the workman. The learned Counsel for the workman invited our attention to the judgment reported in Gujarat Steel Tubes Ltd. v. Its Mazdoor Sabha, 1980 LabourIndustrial Cases 1004, to contend that the normal rule is that while reinstating the workman in service he should be given full backwages and in the given case where the full backwages are not to be allowed, the circumstances necessitating the departure must be established by the employer. The submission of the learned counsel is not well founded. The Labour Court has not found that the charge levied against the workman was not established. He found that the charge has been established. But he interfered with the order of the employer only on the quantum of punishment. The Labour Court found that the punishment of dismissal from service in the case was shockingly disproportionate to the charge levied against the workman and it was under these circumstances that he ordered reinstatement with continuity in service and 50% backwages. Disallowing of 50% backwages appears to be the punishment imposed by the Labour Court which it thought under the circumstances would meet the end of justice. The Labour Court disallowed 50% of the backwages by way of punishment and we do not think that the imposition of this punishment is not warranted on the proved facts of the case.
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Commissioner of Income Tax, Bihar & Orissa Vs. Lakshmi Kant Jha and Ors | 3 as. share. The Maharajadhiraja supplied all the funds and the accounts of the Maharajadhiraja showed advances aggregating to Rs. 32, 00, 000 as underRsAugust 31, 1921 To Kunwar Ganesh Singh for starting a Guddee for ready and forward transactions in various goods, import of goods and dealings in shares 2, 50, 000 September 17, 1921 To Kunwar Ganesh Singh for dealings in shares 1, 50, 000" For starting a Guddee styled Sadashiva Vishwanath 2, 00, 000" To Kunwar Ganesh Singh for Guddee and other business 4, 50, 000Between December 29, 1921 and May 30, 1922 By transfer from various banks 10, 50, 000 October 27, 1922 For Howrah jute share 2, 00, 000November 3, 1922 Kunwar for jute shares 4, 00, 000November 30, 1922 To Kunwar by transfer from bank 5, 00, 00032, 00, 000"7. The debtor did nut act up to the agreement and special efforts were made in 1923 to collect asmuch as possiblse from him. Between 1924 and 1925 several agreements were entered into, and later on, the Maharajadhiraja was recognised to be the sole owner of the business of Sadhashiva Vishwanath8. On April 30, 1925, the debtor executed a registered document admitting his indebtedness to the Maharajadhiraja to the extent of Rs. 30, 09, 571, and in part satisfaction thereof, transferred to the Maharajadhiraja various assets valued at Rs. 20, 74, 973. The debtor had also earlier executed two pronotes for Rs. 25, 000 each. In pursuance of the registered deed dated April 30, 1925, the debtor executed a promissory note for the balance of Rs. 16, 84, 596-1-5 which was to carry interest at the rate of 9% per annum. The sum of Rs. 16, 84, 596-1-5 itself included interest of Rs. 6, 09, 571 due from the debtor on the original advance of Rs. 32, 00, 000 while the balance represented the outstanding amount out of the original advances aggregating to Rs. 32, 00, 0009. In the year 1925, the assessees father brought a suit in the Calcutta High Court against the debtor for Rs. 16, 84, 596. A decree was obtained on March 14, 1927, for Rs. 17, 78, 476 inclusive of further accrued interest of Rs. 93, 835. A part of the debt was realised and a sum of Rs. 16, 64, 596 remained unrealised as due from the debtor. The assessee wrote off the sum of Rs. 16, 64, 596 in the accounting year and claimed the same as a bad debt arising in his money-lending business10. The Income-tax Officer disallowed the claim of Rs. 6, 09, 571 on the ground that it represented interest pertaining to the original advance of Rs. 32, 00, 000 and not connected with the claim of irrecoverable loan in question. As regards the balance of Rs. 10, 55, 025 the Income-tax Officer held that it did not relate to the money-lending transactions of the assessee11. On appeal, by an elaborate order, the Appellate Assistant Commissioner upheld the disallowance12. The matter came up in second appeal before the Tribunal. For the detailed reasons discussed in its order (paragraphs 1 to 26) the Tribunal allowed the claim of Rs. 10, 55, 025 as bad debt and negatived the claim in respect of Rs. 6, 09, 571 representing interest.13. Though under the agreement dated August 4 1921, the assessees father had entered into a partnership business with the debtor, it was submitted that the Maharajadhiraja converted the entire transactions into one of loan to the debtor, and the relationship of partner into one of creditor and debtor, on the footing that the entire transaction was a loan. Claims of bad debts in respect of some of the assets transferred to the assessee at a valuation of Rs. 20, 74, 973 (in connection with the very transation), and the legal expenses in connection therewith, had come up before the High Court and the Privy Council. The decisions proceeded on the footing that the assessee was a money-lender, and that the assets in question had been acquired in the course of the money-lending business on account of loan of Rs. 32, 00, 000 made to the debtor. The Tribunal, thereore, agreed with the submission of the learned counsel for the assessee that at this distance of time, it was not open to the Tribunal to disturb the ending that the whole of the sum of Rs. 32, 00, 000 represented money ending advances made by the Maharajadhiraja. The assessee succeeded the money-lending business of the father. The Tribunal further held that the assessee continued to carry on the money-lending business in the accounting year and allowed deduction of Rs. 10, 55, 025 as bad debt being in the nature of irrecoverable loan of the s money-lending business."The findings reached by the Tribunal are findings of fact. The High Court also pointed out that they are all findings of fact. This is whatt!he High Court says as regards the findings reached by the Tribunal :" All the questions that we have referred to above were questions of fact, and the Tribunal came to its own findings on those facts. It was not, as it could not be urged before us that those findings were not based upon materials or evidence on record."Strangely enough, even af ter coming to that conclusion, the High Court certified this case to be a fit case for appeal to this court, under section 66A(2) of the Income-tax Act, 1922. The High Court did not give any reasons in support of the certificate granted by it. In the ordinary course we would have revoked that certificate and sent back the case to the High Court for giving reasons in support of the certificate. But as we see no merit in this appeal no useful purpose will be served in prolonging this litigation. Findings arrived at by the Tribunal are findings of fact. Those findings are based on evidence. Hence, neither the High Court could have interfered with those findings, nor can we interfere with the same.14. | 0[ds]Strangely enough, even af ter coming to that conclusion, the High Court certified this case to be a fit case for appeal to this court, under section 66A(2) of theAct, 1922. The High Court did not give any reasons in support of the certificate granted by it. In the ordinary course we would have revoked that certificate and sent back the case to the High Court for giving reasons in support of the certificate. But as we see no merit in this appeal no useful purpose will be served in prolonging this litigation. Findings arrived at by the Tribunal are findings of fact. Those findings are based on evidence. Hence, neither the High Court could have interfered with those findings, nor can we interfere with the same | 0 | 1,649 | 146 | ### 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:
3 as. share. The Maharajadhiraja supplied all the funds and the accounts of the Maharajadhiraja showed advances aggregating to Rs. 32, 00, 000 as underRsAugust 31, 1921 To Kunwar Ganesh Singh for starting a Guddee for ready and forward transactions in various goods, import of goods and dealings in shares 2, 50, 000 September 17, 1921 To Kunwar Ganesh Singh for dealings in shares 1, 50, 000" For starting a Guddee styled Sadashiva Vishwanath 2, 00, 000" To Kunwar Ganesh Singh for Guddee and other business 4, 50, 000Between December 29, 1921 and May 30, 1922 By transfer from various banks 10, 50, 000 October 27, 1922 For Howrah jute share 2, 00, 000November 3, 1922 Kunwar for jute shares 4, 00, 000November 30, 1922 To Kunwar by transfer from bank 5, 00, 00032, 00, 000"7. The debtor did nut act up to the agreement and special efforts were made in 1923 to collect asmuch as possiblse from him. Between 1924 and 1925 several agreements were entered into, and later on, the Maharajadhiraja was recognised to be the sole owner of the business of Sadhashiva Vishwanath8. On April 30, 1925, the debtor executed a registered document admitting his indebtedness to the Maharajadhiraja to the extent of Rs. 30, 09, 571, and in part satisfaction thereof, transferred to the Maharajadhiraja various assets valued at Rs. 20, 74, 973. The debtor had also earlier executed two pronotes for Rs. 25, 000 each. In pursuance of the registered deed dated April 30, 1925, the debtor executed a promissory note for the balance of Rs. 16, 84, 596-1-5 which was to carry interest at the rate of 9% per annum. The sum of Rs. 16, 84, 596-1-5 itself included interest of Rs. 6, 09, 571 due from the debtor on the original advance of Rs. 32, 00, 000 while the balance represented the outstanding amount out of the original advances aggregating to Rs. 32, 00, 0009. In the year 1925, the assessees father brought a suit in the Calcutta High Court against the debtor for Rs. 16, 84, 596. A decree was obtained on March 14, 1927, for Rs. 17, 78, 476 inclusive of further accrued interest of Rs. 93, 835. A part of the debt was realised and a sum of Rs. 16, 64, 596 remained unrealised as due from the debtor. The assessee wrote off the sum of Rs. 16, 64, 596 in the accounting year and claimed the same as a bad debt arising in his money-lending business10. The Income-tax Officer disallowed the claim of Rs. 6, 09, 571 on the ground that it represented interest pertaining to the original advance of Rs. 32, 00, 000 and not connected with the claim of irrecoverable loan in question. As regards the balance of Rs. 10, 55, 025 the Income-tax Officer held that it did not relate to the money-lending transactions of the assessee11. On appeal, by an elaborate order, the Appellate Assistant Commissioner upheld the disallowance12. The matter came up in second appeal before the Tribunal. For the detailed reasons discussed in its order (paragraphs 1 to 26) the Tribunal allowed the claim of Rs. 10, 55, 025 as bad debt and negatived the claim in respect of Rs. 6, 09, 571 representing interest.13. Though under the agreement dated August 4 1921, the assessees father had entered into a partnership business with the debtor, it was submitted that the Maharajadhiraja converted the entire transactions into one of loan to the debtor, and the relationship of partner into one of creditor and debtor, on the footing that the entire transaction was a loan. Claims of bad debts in respect of some of the assets transferred to the assessee at a valuation of Rs. 20, 74, 973 (in connection with the very transation), and the legal expenses in connection therewith, had come up before the High Court and the Privy Council. The decisions proceeded on the footing that the assessee was a money-lender, and that the assets in question had been acquired in the course of the money-lending business on account of loan of Rs. 32, 00, 000 made to the debtor. The Tribunal, thereore, agreed with the submission of the learned counsel for the assessee that at this distance of time, it was not open to the Tribunal to disturb the ending that the whole of the sum of Rs. 32, 00, 000 represented money ending advances made by the Maharajadhiraja. The assessee succeeded the money-lending business of the father. The Tribunal further held that the assessee continued to carry on the money-lending business in the accounting year and allowed deduction of Rs. 10, 55, 025 as bad debt being in the nature of irrecoverable loan of the s money-lending business."The findings reached by the Tribunal are findings of fact. The High Court also pointed out that they are all findings of fact. This is whatt!he High Court says as regards the findings reached by the Tribunal :" All the questions that we have referred to above were questions of fact, and the Tribunal came to its own findings on those facts. It was not, as it could not be urged before us that those findings were not based upon materials or evidence on record."Strangely enough, even af ter coming to that conclusion, the High Court certified this case to be a fit case for appeal to this court, under section 66A(2) of the Income-tax Act, 1922. The High Court did not give any reasons in support of the certificate granted by it. In the ordinary course we would have revoked that certificate and sent back the case to the High Court for giving reasons in support of the certificate. But as we see no merit in this appeal no useful purpose will be served in prolonging this litigation. Findings arrived at by the Tribunal are findings of fact. Those findings are based on evidence. Hence, neither the High Court could have interfered with those findings, nor can we interfere with the same.14.
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Strangely enough, even af ter coming to that conclusion, the High Court certified this case to be a fit case for appeal to this court, under section 66A(2) of theAct, 1922. The High Court did not give any reasons in support of the certificate granted by it. In the ordinary course we would have revoked that certificate and sent back the case to the High Court for giving reasons in support of the certificate. But as we see no merit in this appeal no useful purpose will be served in prolonging this litigation. Findings arrived at by the Tribunal are findings of fact. Those findings are based on evidence. Hence, neither the High Court could have interfered with those findings, nor can we interfere with the same
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ASHOK KUMAR Vs. DEPINDER SINGH DHESI | result of test or till 31.07.2018 whichever was later. The benefit of retaining the advantages was thus extended only till the first attempt. Those who could not clear the examination in first attempt or chose not to appear in the examination conducted in May/June, 2018 were not entitled to the concessions extended by the Order. 10. It was, therefore, clear that the candidates who, on the strength of such Degrees awarded through Distance Education Mode, had attained a particular level in their career or were enjoying certain benefits as on the date of the Judgment and if they pass the examination, those benefits would stand restored. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. The idea was, candidates should not stand deprived of the status that they were enjoying as on the day of the Judgment provided the candidates could prove their worth and ability. But if, the concerned candidates had not attained any particular status, as on the date when the Judgment was passed, the width of the directions was not to confer any additional advantage which was not even enjoyed as on the date. It was not the idea to hold the candidates to be entitled to certain additional benefits which the candidates were, as a matter of fact, not even enjoying on the date of the judgment. If the degrees stood restored in terms of the directions in the Judgment and the Order, the candidates would certainly be eligible to such entitlements as are available in accordance with law, but ?restoration? would only be of those benefits, which they were enjoying as on the date of the Judgment. In short, the intent was to restore status quo ante and not to confer any additional advantage by the Judgment and the Order. 11. In the present case serious objection has been raised on behalf of Department that the concerned candidates had enrolled themselves in courses leading to Degrees in Engineering through Distance Education Mode without express permission of the Department and/or the Department did not recognise the Degrees in Engineering awarded through Distance Education Mode or that the concerned candidates were not granted any study leave to pursue such courses. If the Degrees were so obtained in violation of the norms and parameters laid down by the concerned Department, the matter assumes completely different complexion. The directions issued by this Court in the Judgment and the Order never directed to confer such advantages which the candidates were otherwise not enjoying on the date when the Judgment and clarificatory Order were passed. If there was serious infirmity in the Degrees so obtained by the candidates, the matter ought to be sorted out either through representation or through properly instituted challenge in that behalf. If the promotion was not granted and was not being enjoyed as on the day when the judgment was passed, there was no violation of any direction issued by this Court. As is evident, the representations made by the Contempt Petitioner claimed conferral of certain status and benefits which they were not enjoying earlier. If there be any grievance on that front, the entitlement needs to be established in proceedings other than a Contempt Petition. 12. Mr. Maninder Singh, learned Senior Advocate, was, therefore completely justified in relying upon the following observations passed by this Court in J.S. Parihar vs. Ganpat Duggar and others (1996) 6 SCC 291 :-?6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.?13. We, therefore, do not find any violation on part of the alleged Contemnors. | 0[ds]8. In spite of the conclusion that (a) courses leading to Degrees in Engineering could not be taught through Distance Education Mode without there being express guidelines issued by AICTEpermitting such mode; and (b) the deemed to be Universities in question were not entitled to start courses in Engineering through Distance Education Mode without prior approval under the AICTE, the facility of benefit as detailed in paragraphs 57 and 58 of the Judgment was extended to the students. Though the Degrees obtained through Distance Education Mode were prima facie not in accordance with law, the students enrolled during the academic sessions 2001-2005 were given two chances to prove their worth and it was directed that if they clear the test, they would continue to derive advantages flowing from suchmay be mentioned here that there could possibly be variety of advantages derived by the candidates on the basis of such Degrees awarded at least 10 years before the Judgment was pronounced. During this period some of the candidates might have progressed in career on the basis of such Degree, while some could possibly have acquired Post-Graduate qualifications such as M.Tech and M.B.A. on the strength of such Degrees. It was in this light, that the Court ruled that though from the date of the Judgment all the advantages and benefits flowing or arising from such Degrees would stand suspended, the benefits or advantages would get revived after the candidates had cleared the examination, spoken of in said paragraphs 57 and 58. If any candidate either failed to clear the examination in two attempts or if he chose not to appear in the examination, the Degree would stand annulled completely disentitling the candidate to all the benefits and advantages flowing from such degrees.Some candidates approached this Court submitting that if in terms of the Judgment the benefits or advantages were to be withdrawn and could be regranted or restored only after the candidates had cleared the examination, it may entail some prejudice to the candidates. Some of the candidates who had obtained Post-Graduate Degrees and were employed on the strength of such Degrees would be required to surrender such benefits; and even if they were to pass the examination in the first attempt, it may still require restoration of the benefits leading to situations of inconvenience and prejudice. The directions in the Judgment were therefore modified to a certain extent in the Order. It was, therefore, laid down by way of further concession in the Order that all the candidates who desired to appear in the upcoming examination could retain all the advantages and benefits till one month after declaration of the result of test or till 31.07.2018 whichever was later. The benefit of retaining the advantages was thus extended only till the first attempt. Those who could not clear the examination in first attempt or chose not to appear in the examination conducted in May/June, 2018 were not entitled to the concessions extended by the Order.It was, therefore, clear that the candidates who, on the strength of such Degrees awarded through Distance Education Mode, had attained a particular level in their career or were enjoying certain benefits as on the date of the Judgment and if they pass the examination, those benefits would stand restored. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. The idea was, candidates should not stand deprived of the status that they were enjoying as on the day of the Judgment provided the candidates could prove their worth andif, the concerned candidates had not attained any particular status, as on the date when the Judgment was passed, the width of the directions was not to confer any additional advantage which was not even enjoyed as on the date. It was not the idea to hold the candidates to be entitled to certain additional benefits which the candidates were, as a matter of fact, not even enjoying on the date of the judgment. If the degrees stood restored in terms of the directions in the Judgment and the Order, the candidates would certainly be eligible to such entitlements as are available in accordance with law, but ?restoration? would only be of those benefits, which they were enjoying as on the date of the Judgment. In short, the intent was to restore status quo ante and not to confer any additional advantage by the Judgment and the Order.In the present case serious objection has been raised on behalf of Department that the concerned candidates had enrolled themselves in courses leading to Degrees in Engineering through Distance Education Mode without express permission of the Department and/or the Department did not recognise the Degrees in Engineering awarded through Distance Education Mode or that the concerned candidates were not granted any study leave to pursue such courses. If the Degrees were so obtained in violation of the norms and parameters laid down by the concerned Department, the matter assumes completely different complexion. The directions issued by this Court in the Judgment and the Order never directed to confer such advantages which the candidates were otherwise not enjoying on the date when the Judgment and clarificatory Order were passed. If there was serious infirmity in the Degrees so obtained by the candidates, the matter ought to be sorted out either through representation or through properly instituted challenge in that behalf. If the promotion was not granted and was not being enjoyed as on the day when the judgment was passed, there was no violation of any direction issued by this Court. As is evident, the representations made by the Contempt Petitioner claimed conferral of certain status and benefits which they were not enjoying earlier. If there be any grievance on that front, the entitlement needs to be established in proceedings other than a Contempt Petition.Mr. Maninder Singh, learned Senior Advocate, was, therefore completely justified in relying upon the following observations passed by this Court in J.S. Parihar vs. Ganpat Duggar and others(1996) 6 SCC 291 The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.We, therefore, do not find any violation on part of the alleged Contemnors. | 0 | 3,739 | 1,540 | ### Instruction:
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result of test or till 31.07.2018 whichever was later. The benefit of retaining the advantages was thus extended only till the first attempt. Those who could not clear the examination in first attempt or chose not to appear in the examination conducted in May/June, 2018 were not entitled to the concessions extended by the Order. 10. It was, therefore, clear that the candidates who, on the strength of such Degrees awarded through Distance Education Mode, had attained a particular level in their career or were enjoying certain benefits as on the date of the Judgment and if they pass the examination, those benefits would stand restored. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. The idea was, candidates should not stand deprived of the status that they were enjoying as on the day of the Judgment provided the candidates could prove their worth and ability. But if, the concerned candidates had not attained any particular status, as on the date when the Judgment was passed, the width of the directions was not to confer any additional advantage which was not even enjoyed as on the date. It was not the idea to hold the candidates to be entitled to certain additional benefits which the candidates were, as a matter of fact, not even enjoying on the date of the judgment. If the degrees stood restored in terms of the directions in the Judgment and the Order, the candidates would certainly be eligible to such entitlements as are available in accordance with law, but ?restoration? would only be of those benefits, which they were enjoying as on the date of the Judgment. In short, the intent was to restore status quo ante and not to confer any additional advantage by the Judgment and the Order. 11. In the present case serious objection has been raised on behalf of Department that the concerned candidates had enrolled themselves in courses leading to Degrees in Engineering through Distance Education Mode without express permission of the Department and/or the Department did not recognise the Degrees in Engineering awarded through Distance Education Mode or that the concerned candidates were not granted any study leave to pursue such courses. If the Degrees were so obtained in violation of the norms and parameters laid down by the concerned Department, the matter assumes completely different complexion. The directions issued by this Court in the Judgment and the Order never directed to confer such advantages which the candidates were otherwise not enjoying on the date when the Judgment and clarificatory Order were passed. If there was serious infirmity in the Degrees so obtained by the candidates, the matter ought to be sorted out either through representation or through properly instituted challenge in that behalf. If the promotion was not granted and was not being enjoyed as on the day when the judgment was passed, there was no violation of any direction issued by this Court. As is evident, the representations made by the Contempt Petitioner claimed conferral of certain status and benefits which they were not enjoying earlier. If there be any grievance on that front, the entitlement needs to be established in proceedings other than a Contempt Petition. 12. Mr. Maninder Singh, learned Senior Advocate, was, therefore completely justified in relying upon the following observations passed by this Court in J.S. Parihar vs. Ganpat Duggar and others (1996) 6 SCC 291 :-?6. The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.?13. We, therefore, do not find any violation on part of the alleged Contemnors.
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the advantages and benefits till one month after declaration of the result of test or till 31.07.2018 whichever was later. The benefit of retaining the advantages was thus extended only till the first attempt. Those who could not clear the examination in first attempt or chose not to appear in the examination conducted in May/June, 2018 were not entitled to the concessions extended by the Order.It was, therefore, clear that the candidates who, on the strength of such Degrees awarded through Distance Education Mode, had attained a particular level in their career or were enjoying certain benefits as on the date of the Judgment and if they pass the examination, those benefits would stand restored. If the candidates could clear the examination in the first attempt itself, there would not even be any break in continuous enjoyment of those benefits or facilities. The idea was, candidates should not stand deprived of the status that they were enjoying as on the day of the Judgment provided the candidates could prove their worth andif, the concerned candidates had not attained any particular status, as on the date when the Judgment was passed, the width of the directions was not to confer any additional advantage which was not even enjoyed as on the date. It was not the idea to hold the candidates to be entitled to certain additional benefits which the candidates were, as a matter of fact, not even enjoying on the date of the judgment. If the degrees stood restored in terms of the directions in the Judgment and the Order, the candidates would certainly be eligible to such entitlements as are available in accordance with law, but ?restoration? would only be of those benefits, which they were enjoying as on the date of the Judgment. In short, the intent was to restore status quo ante and not to confer any additional advantage by the Judgment and the Order.In the present case serious objection has been raised on behalf of Department that the concerned candidates had enrolled themselves in courses leading to Degrees in Engineering through Distance Education Mode without express permission of the Department and/or the Department did not recognise the Degrees in Engineering awarded through Distance Education Mode or that the concerned candidates were not granted any study leave to pursue such courses. If the Degrees were so obtained in violation of the norms and parameters laid down by the concerned Department, the matter assumes completely different complexion. The directions issued by this Court in the Judgment and the Order never directed to confer such advantages which the candidates were otherwise not enjoying on the date when the Judgment and clarificatory Order were passed. If there was serious infirmity in the Degrees so obtained by the candidates, the matter ought to be sorted out either through representation or through properly instituted challenge in that behalf. If the promotion was not granted and was not being enjoyed as on the day when the judgment was passed, there was no violation of any direction issued by this Court. As is evident, the representations made by the Contempt Petitioner claimed conferral of certain status and benefits which they were not enjoying earlier. If there be any grievance on that front, the entitlement needs to be established in proceedings other than a Contempt Petition.Mr. Maninder Singh, learned Senior Advocate, was, therefore completely justified in relying upon the following observations passed by this Court in J.S. Parihar vs. Ganpat Duggar and others(1996) 6 SCC 291 The question then is whether the Division Bench was right in setting aside the direction issued by the learned Single Judge to redraw the seniority list. It is contended by Mr S.K. Jain, the learned counsel appearing for the appellant, that unless the learned Judge goes into the correctness of the decision taken by the Government in preparation of the seniority list in the light of the law laid down by three Benches, the learned Judge cannot come to a conclusion whether or not the respondent had wilfully or deliberately disobeyed the orders of the Court as defined under Section 2(b) of the Act. Therefore, the learned Single Judge of the High Court necessarily has to go into the merits of that question. We do not find that the contention is well founded. It is seen that, admittedly, the respondents had prepared the seniority list on 2-7-1991. Subsequently promotions came to be made. The question is whether seniority list is open to review in the contempt proceedings to find out whether it is in conformity with the directions issued by the earlier Benches. It is seen that once there is an order passed by the Government on the basis of the directions issued by the court, there arises a fresh cause of action to seek redressal in an appropriate forum. The preparation of the seniority list may be wrong or may be right or may or may not be in conformity with the directions. But that would be a fresh cause of action for the aggrieved party to avail of the opportunity of judicial review. But that cannot be considered to be the wilful violation of the order. After re-exercising the judicial review in contempt proceedings, a fresh direction by the learned Single Judge cannot be given to redraw the seniority list. In other words, the learned Judge was exercising the jurisdiction to consider the matter on merits in the contempt proceedings. It would not be permissible under Section 12 of the Act. Therefore, the Division Bench has exercised the power under Section 18 of the Rajasthan High Court Ordinance being a judgment or order of the Single Judge; the Division Bench corrected the mistake committed by the learned Single Judge. Therefore, it may not be necessary for the State to file an appeal in this Court against the judgment of the learned Single Judge when the matter was already seized of the Division Bench.We, therefore, do not find any violation on part of the alleged Contemnors.
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ESTATE OFFR.HARYANA URBAN DEV.AUTH Vs. GOPI CHAND ATREJA | Abhay Manohar Sapre, J.1. These appeals are directed against the final judgment and orders dated 23.01.2008 and 05.05.2008 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. No.4110 of 2007 and R.A.C. No.23¬C of 2008 in R.S.A. No.4110 of 2007 respectively whereby the High Court dismissed the second appeal as well as the review application filed by the appellants herein.2. These appeals involve a short point as would be clear from the facts mentioned hereinbelow.3. The appellants herein is the Haryana Urban Development Authority (hereinafter referred to as ?HUDA?). They are the defendants whereas the respondent is the plaintiff in the civil suit out of which these appeals arise.4. The respondent filed a civil suit being Civil Suit No.305 of 2000 in the Court of Civil Judge(Jr. Division), Karnal against the appellants(HUDA) claiming a decree for declaration with consequential relief of permanent and mandatory injunction in relation to the suit land. The suit was decreed by the Trial Court on contest vide judgment/decree dated 01.05.2001.5. The appellants (defendants) felt aggrieved and filed first appeal being Civil Appeal No.92 of 2001 in the Court of Additional District Judge, Karnal. By judgment dated 07.02.2002, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.6. The appellants felt aggrieved and filed second appeal in the High Court of Punjab & Haryana at Chandigarh. Since the appeal filed by the appellant was barred by 1942 days, the appellants filed an application under Section 5 of the Limitation Act and prayed for condoning the delay in filing the second appeal.7. By impugned order dated 23.01.2008, the High Court rejected the application and declined to condone the delay. The High Court held that the cause pleaded by the appellants for condoning the delay is not a sufficient cause. As a consequence, the second appeal was also dismissed as being barred by limitation.8. Challenging the said order, the appellants filed a review petition. By order dated 05.02.2008, the High Court also dismissed the review petition.9. Against the orders dated 23.01.2008 and 05.02.2008, the appellants(defendants) have filed these appeals by way of special leave in this Court.10. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? second appeal on the ground of limitation.11. In other words, the question arises for consideration in these appeals is whether the High Court was justified in not condoning the delay of 1942 days in filing the second appeal by the appellants(defendants).12. Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Gagan Gupta, learned counsel for the respondent.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.14. In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below.15. First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.16. The appellant¬HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well¬established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.17. It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects.18. If, according to the appellants¬HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.20. In our view, it is a clear case where the appellant¬ HUDA,i.e., their officers, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. | 0[ds]13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.14. In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below.15. First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.16. The appellant¬HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well¬established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.17. It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects.18. If, according to the appellants¬HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.20. In our view, it is a clear case where the appellant¬ HUDA,i.e., their officers, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure. | 0 | 890 | 397 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
Abhay Manohar Sapre, J.1. These appeals are directed against the final judgment and orders dated 23.01.2008 and 05.05.2008 passed by the High Court of Punjab & Haryana at Chandigarh in R.S.A. No.4110 of 2007 and R.A.C. No.23¬C of 2008 in R.S.A. No.4110 of 2007 respectively whereby the High Court dismissed the second appeal as well as the review application filed by the appellants herein.2. These appeals involve a short point as would be clear from the facts mentioned hereinbelow.3. The appellants herein is the Haryana Urban Development Authority (hereinafter referred to as ?HUDA?). They are the defendants whereas the respondent is the plaintiff in the civil suit out of which these appeals arise.4. The respondent filed a civil suit being Civil Suit No.305 of 2000 in the Court of Civil Judge(Jr. Division), Karnal against the appellants(HUDA) claiming a decree for declaration with consequential relief of permanent and mandatory injunction in relation to the suit land. The suit was decreed by the Trial Court on contest vide judgment/decree dated 01.05.2001.5. The appellants (defendants) felt aggrieved and filed first appeal being Civil Appeal No.92 of 2001 in the Court of Additional District Judge, Karnal. By judgment dated 07.02.2002, the first Appellate Court dismissed the appeal and affirmed the judgment/decree of the Trial Court.6. The appellants felt aggrieved and filed second appeal in the High Court of Punjab & Haryana at Chandigarh. Since the appeal filed by the appellant was barred by 1942 days, the appellants filed an application under Section 5 of the Limitation Act and prayed for condoning the delay in filing the second appeal.7. By impugned order dated 23.01.2008, the High Court rejected the application and declined to condone the delay. The High Court held that the cause pleaded by the appellants for condoning the delay is not a sufficient cause. As a consequence, the second appeal was also dismissed as being barred by limitation.8. Challenging the said order, the appellants filed a review petition. By order dated 05.02.2008, the High Court also dismissed the review petition.9. Against the orders dated 23.01.2008 and 05.02.2008, the appellants(defendants) have filed these appeals by way of special leave in this Court.10. So, the short question, which arises for consideration in these appeals, is whether the High Court was justified in dismissing the appellants? second appeal on the ground of limitation.11. In other words, the question arises for consideration in these appeals is whether the High Court was justified in not condoning the delay of 1942 days in filing the second appeal by the appellants(defendants).12. Heard Mr. Vishwa Pal Singh, learned counsel for the appellants and Mr. Gagan Gupta, learned counsel for the respondent.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.14. In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below.15. First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.16. The appellant¬HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well¬established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.17. It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects.18. If, according to the appellants¬HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.20. In our view, it is a clear case where the appellant¬ HUDA,i.e., their officers, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure.
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13. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in these appeals.14. In our view, the delay of 1942 days in filing the second appeal in the High Court was rightly not condoned by the High Court for the reasons mentioned below.15. First, the delay was inordinate; Second it was not properly explained; and Third, the ground alleged in support of application filed under Section 5 of the Limitation Act did not constitute a sufficient cause.16. The appellant¬HUDA is a statutory authority created under the Haryana Urban Development Authority Act, 1977. It has its well¬established legal department to look after the legal cases filed by HUDA and against the HUDA in various Courts. They have panel of lawyers to defend their interest in Courts.17. It is not in dispute that the appellants had been contesting the civil suit and the first appeal since inception. The appellants were, therefore, fully aware of the adverse orders passed in the first appeal against them. There was, therefore, no justification on their part to keep quiet for such a long time and not to file the appeal within 90 days or/and re-file it immediately after curing the defects.18. If, according to the appellants¬HUDA, their lawyer did not take timely steps, which resulted in causing delay in its filing/refiling, then, in our view, it cannot be regarded as a sufficient cause within the meaning of Section 5 of the Limitation Act.19. In our view, it was equally the duty of the appellants (their legal managers) to see that the appeal be filed in time. If the appellants noticed that their lawyer was not taking interest in attending to the brief in question, then they should have immediately engaged some other lawyer to ensure that the appeal be filed in time by another lawyer.20. In our view, it is a clear case where the appellant¬ HUDA,i.e., their officers, who were in-charge of the legal cell failed to discharge their duty assigned to them promptly and with due diligence despite availability of all facilities and infrastructure.
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Chandra Bhan and Ors Vs. Ghaziabad Dev. Authority and Ors | the Official Gazette and two daily newspapers having circulation in the locality. of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification. 22. A similar view was expressed in Surinder Singh Brar and Ors. v. Union of India and Ors. (2013) 1 SCC 403 in paragraph 75 of the Report. 23. Under the circumstances, the Reference Court was justified in relying upon the two sale deeds executed before the last date of publication under Section 4 of the Act, that is, 1st October, 1988. As mentioned above, Exhibit 16A was executed on 11th July, 1988 and Exhibit 18C was executed on 23rd August, 1988 well before the last date of publication of the notification under Section 4 of the Act. In our opinion, the High Court erroneously took the view that reliance should not be placed on these sale deeds since they had come into existence either just before the issuance of the notification under Section 4 of the Act or soon after the issuance of that notification insinuating thereby that the sale deeds did not reflect the true market price of the land that was sold through those sale deeds. 24. The High Court was also in error in coming to the conclusion that because the two sale deeds Exhibit 16A and Exhibit 18C relate to small parcels of land (150 sq.yds. and 57 sq.yds. respectively) they could not be used as exemplars for determining the market value of the acquired land. It is true that the sale deeds pertain to small parcels of land but it is not usual to find sale transactions of large tracts of land that could give some indication of the market value of the acquired land. In fact, in Special Land Acquisition Officer and Anr. v. M.K. Rafiq Saheb (2011) 7 SCC 714 it was observed that in the normal course it is hardly possible for a claimant to produce sale instances of large tracts of land. In paragraph 24 of the Report it was held as follows: It may also be noticed that in the normal course of events, it is hardly possible for a claimant to produce sale instances of large tracts of land. The sale of land containing large tracts are generally very far and few. Normally, the sale instances would relate to small pieces of land. This limitation of sale transaction cannot operate to the disadvantage of the claimants. Thus, the court should look into sale instances of smaller pieces of land while applying reasonable element of deduction. 25. A useful discussion on the subject is to be found in a recent decision of this Court in Nirmal Singh v. State of Haryana 2014 (II) SCALE 593. It is for this reason of inexactitude that there is a constant search for an appropriate method for calculating the market value of the acquired land and one of the methods that is accepted is the comparable sales method of valuation of land. 26. In Printers House Pvt. Ltd. v. Mst. Saiyadan and Ors. (1994) 2 SCC 133 it was held that that this method generally holds good for determination of the market value of several acquired plots of land and it is preferred to other known methods of valuation of land since the variety of factors appertaining to the land, which require adjustment by the court as the valuer in determining the market value of the acquired land, would be the least. This is not to suggest that this method has to be invariably accepted since there are factors that may still require to be considered as laid down in a recent decision of this Court in Maj. Gen. Kapil Mehra v. Union of India 2014 (12) SCALE 248 which contains a useful discussion on the subject. 27. Broadly speaking, as long as the sale is an arms length transaction it would merit consideration by the authorities under the Act for the purposes of determining the market value of the acquired land. That being so, and given the facts of the case, the Reference Court was not in error in adopting the comparable sales method of valuation of land. 28. The High Court has noted, and it was pointed out by Learned Counsel for the State/GDA that the SLAO had before him 66 comparable sale deeds for village Harsaon, 48 comparable sale deeds for village Oasna and 105 comparable sale deeds for village Sadarpur but these were overlooked. However, we have noticed from the decision rendered by the Reference Court that these sale deeds were not admissible in evidence and in fact the only sale deeds that were admissible and which were taken into account were those mentioned by the High Court namely: 29. As mentioned above, out of the above sale deeds, only the sale deeds at Exhibit 16A and Exhibit 18C were relevant and these were rightly taken into account for consideration by the Reference Court in granting compensation at ` 163/- per sq. yard for the land in all the three villages. These were sales pertaining to small parcels of land but were accepted by the Reference Court to be arms length sales for the purposes of applying the comparable sales method of valuation of land. Nothing to the contrary has come in evidence. 30. There is no dispute that the deduction of 30% towards development charges out of the average sale price as mentioned in Exhibit 16A and Exhibit 18C was reasonable. The average sale price of the two sale deeds comes to ` 229 per sq. yard and with a 30% deduction thereon, the Reference Court came to a figure of ` 163 per sq. yard as the compensation due to the claimants. | 1[ds]In our opinion, this contention is without any substance for several reasons. In Ajit Singh and Ors. v. State of Punjab and Ors. (1994) 4 SCC 67 it was held that since the Appellants therein had filed an application for reference under Section 18 of the Act, it manifested their intention. Consequently, the protest against the award of the Collector was implied notwithstanding the acceptance of compensation.14. Similarly, in U.P. State Industrial Development Corpn. v. Rishab Ispat Ltd. and Ors. (2007) 2 SCC 248 it was held that the question whether the compensation offered was accepted without protest is essentially a question of fact to be determined on the basis of the evidence on record. On facts, it was held in that decision that there was nothing to suggest that the claimants had accepted the compensation without protest.15. Insofar as the present appeals are concerned, although the State/GDA did aver in its written statement that Chandra Bhan had accepted the compensation without any protest, no issue was framed in this regard, and therefore, there was no question of any evidence having been led to show that the claim was accepted without any protest. That apart, the SLAO gave his award on 7th December, 1990 and Chandra Bhan had filed his objections to the award and sought a reference within the prescribed time by making an application under Section 18 of the Act on 11th January, 1991. His conduct clearly shows that the award passed by the SLAO was not accepted without protest.16. Additionally, we are of the opinion that in cases where a large number of claimants are involved, there will always be a few claimants who may accept the award passed by the Collector. If they are precluded from making a reference for enhancement of compensation, it could lead to an anomalous situation where out of very large number of landowners, some of them, located in scattered pockets would be entitled to the compensation only as awarded by the Collector while some of them in other scattered pockets would be entitled to claim enhancement of compensation. There would, therefore, be two distinct class of land owners similarly located and placed but receiving different amounts of compensation for the acquisition of the same land. Surely, this cannot be the intention of Section 18 of the Act.17. In the impugned judgment and order the High Court has laid emphasis on the fact that since the claimants had accepted the compensation awarded by the SLAO without protest, the reference under Section 18 of the Act was not maintainable. As we have found on facts, this is incorrect and the judgment and order passed by the High Court is, to this extent, unsustainable.The decision relied upon does not advance the case of Learned Counsel. That was a case decided on its own facts pertaining to an individual in which one member of the family was satisfied with the compensation awarded to him in respect of his parcel of land and other members of the family were not and had accepted the compensation under protest. The Appellant in the cited case sought to take advantage of the protest by other members of his family. This Court, in that context, referred to Section 18 of the Act and held that a person interested, in order to enable him to seek the remedy of reference can do so if he does not accept the award made by the Collector. That was also a case in which only an individual was affected and not a large number of landowners.We cannot entertain this submission since it involves a decision on a fact that was not considered either by the Reference Court or by the High Court. However, we may only observe that in the written statement filed by the State/GDA it has not been stated anywhere when the compensation was accepted by Chandra Bhan (without protest) and the quantum thereof. On the contrary, a rather general averment has been made to the following effect:That the claimant/s has/have accepted the Award and has/have received the amount of compensation without protest as such the reference is legally not maintainable and is liable to be dismissed.. In the absence of any definitive facts having been pleaded by the State/GDA, it is difficult to come to the conclusion that Chandra Bhan and the other claimants had accepted the compensation without protest.21. With regard to the quantum of compensation granted by the Reference Court, we find that it has come on record that even though the notification under Section 4 of the Act was gazetted on 16th August, 1988 the last date of its publication was 1st October, 1988. It has been held in several decisions including a comparatively recent decision in Usha Stud and Agricultural Farms Private Limited and Ors. v. State of Haryana and Ors. (2013) 4 SCC 210 that the last date of publication and giving of public notice is treated as the date of publication of the notification. It was held in paragraph 20.1 as follows:20.1. Section 4(1) lays down that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, then a notification to that effect is required to be published in the Official Gazette and two daily newspapers having circulation in the locality. of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification.. A similar view was expressed in Surinder Singh Brar and Ors. v. Union of India and Ors. (2013) 1 SCC 403 in paragraph 75 of the Report.23. Under the circumstances, the Reference Court was justified in relying upon the two sale deeds executed before the last date of publication under Section 4 of the Act, that is, 1st October, 1988. As mentioned above, Exhibit 16A was executed on 11th July, 1988 and Exhibit 18C was executed on 23rd August, 1988 well before the last date of publication of the notification under Section 4 of the Act. In our opinion, the High Court erroneously took the view that reliance should not be placed on these sale deeds since they had come into existence either just before the issuance of the notification under Section 4 of the Act or soon after the issuance of that notification insinuating thereby that the sale deeds did not reflect the true market price of the land that was sold through those sale deeds.24. The High Court was also in error in coming to the conclusion that because the two sale deeds Exhibit 16A and Exhibit 18C relate to small parcels of land (150 sq.yds. and 57 sq.yds. respectively) they could not be used as exemplars for determining the market value of the acquired land. It is true that the sale deeds pertain to small parcels of land but it is not usual to find sale transactions of large tracts of land that could give some indication of the market value of the acquired land. In fact, in Special Land Acquisition Officer and Anr. v. M.K. Rafiq Saheb (2011) 7 SCC 714 it was observed that in the normal course it is hardly possible for a claimant to produce sale instances of large tracts of land. In paragraph 24 of the Report it was held as follows:It may also be noticed that in the normal course of events, it is hardly possible for a claimant to produce sale instances of large tracts of land. The sale of land containing large tracts are generally very far and few. Normally, the sale instances would relate to small pieces of land. This limitation of sale transaction cannot operate to the disadvantage of the claimants. Thus, the court should look into sale instances of smaller pieces of land while applying reasonable element of deduction.27. Broadly speaking, as long as the sale is an arms length transaction it would merit consideration by the authorities under the Act for the purposes of determining the market value of the acquired land. That being so, and given the facts of the case, the Reference Court was not in error in adopting the comparable sales method of valuation of land.28. The High Court has noted, and it was pointed out by Learned Counsel for the State/GDA that the SLAO had before him 66 comparable sale deeds for village Harsaon, 48 comparable sale deeds for village Oasna and 105 comparable sale deeds for village Sadarpur but these were overlooked. However, we have noticed from the decision rendered by the Reference Court that these sale deeds were not admissible in evidence and in fact the only sale deeds that were admissible and which were taken into account were those mentioned by the High Court namely:. As mentioned above, out of the above sale deeds, only the sale deeds at Exhibit 16A and Exhibit 18C were relevant and these were rightly taken into account for consideration by the Reference Court in granting compensation at ` 163/- per sq. yard for the land in all the three villages. These were sales pertaining to small parcels of land but were accepted by the Reference Court to be arms length sales for the purposes of applying the comparable sales method of valuation of land. Nothing to the contrary has come in evidence.30. There is no dispute that the deduction of 30% towards development charges out of the average sale price as mentioned in Exhibit 16A and Exhibit 18C was reasonable. The average sale price of the two sale deeds comes to ` 229 per sq. yard and with a 30% deduction thereon, the Reference Court came to a figure of ` 163 per sq. yard as the compensation due to the claimants. | 1 | 3,061 | 1,824 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the Official Gazette and two daily newspapers having circulation in the locality. of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification. 22. A similar view was expressed in Surinder Singh Brar and Ors. v. Union of India and Ors. (2013) 1 SCC 403 in paragraph 75 of the Report. 23. Under the circumstances, the Reference Court was justified in relying upon the two sale deeds executed before the last date of publication under Section 4 of the Act, that is, 1st October, 1988. As mentioned above, Exhibit 16A was executed on 11th July, 1988 and Exhibit 18C was executed on 23rd August, 1988 well before the last date of publication of the notification under Section 4 of the Act. In our opinion, the High Court erroneously took the view that reliance should not be placed on these sale deeds since they had come into existence either just before the issuance of the notification under Section 4 of the Act or soon after the issuance of that notification insinuating thereby that the sale deeds did not reflect the true market price of the land that was sold through those sale deeds. 24. The High Court was also in error in coming to the conclusion that because the two sale deeds Exhibit 16A and Exhibit 18C relate to small parcels of land (150 sq.yds. and 57 sq.yds. respectively) they could not be used as exemplars for determining the market value of the acquired land. It is true that the sale deeds pertain to small parcels of land but it is not usual to find sale transactions of large tracts of land that could give some indication of the market value of the acquired land. In fact, in Special Land Acquisition Officer and Anr. v. M.K. Rafiq Saheb (2011) 7 SCC 714 it was observed that in the normal course it is hardly possible for a claimant to produce sale instances of large tracts of land. In paragraph 24 of the Report it was held as follows: It may also be noticed that in the normal course of events, it is hardly possible for a claimant to produce sale instances of large tracts of land. The sale of land containing large tracts are generally very far and few. Normally, the sale instances would relate to small pieces of land. This limitation of sale transaction cannot operate to the disadvantage of the claimants. Thus, the court should look into sale instances of smaller pieces of land while applying reasonable element of deduction. 25. A useful discussion on the subject is to be found in a recent decision of this Court in Nirmal Singh v. State of Haryana 2014 (II) SCALE 593. It is for this reason of inexactitude that there is a constant search for an appropriate method for calculating the market value of the acquired land and one of the methods that is accepted is the comparable sales method of valuation of land. 26. In Printers House Pvt. Ltd. v. Mst. Saiyadan and Ors. (1994) 2 SCC 133 it was held that that this method generally holds good for determination of the market value of several acquired plots of land and it is preferred to other known methods of valuation of land since the variety of factors appertaining to the land, which require adjustment by the court as the valuer in determining the market value of the acquired land, would be the least. This is not to suggest that this method has to be invariably accepted since there are factors that may still require to be considered as laid down in a recent decision of this Court in Maj. Gen. Kapil Mehra v. Union of India 2014 (12) SCALE 248 which contains a useful discussion on the subject. 27. Broadly speaking, as long as the sale is an arms length transaction it would merit consideration by the authorities under the Act for the purposes of determining the market value of the acquired land. That being so, and given the facts of the case, the Reference Court was not in error in adopting the comparable sales method of valuation of land. 28. The High Court has noted, and it was pointed out by Learned Counsel for the State/GDA that the SLAO had before him 66 comparable sale deeds for village Harsaon, 48 comparable sale deeds for village Oasna and 105 comparable sale deeds for village Sadarpur but these were overlooked. However, we have noticed from the decision rendered by the Reference Court that these sale deeds were not admissible in evidence and in fact the only sale deeds that were admissible and which were taken into account were those mentioned by the High Court namely: 29. As mentioned above, out of the above sale deeds, only the sale deeds at Exhibit 16A and Exhibit 18C were relevant and these were rightly taken into account for consideration by the Reference Court in granting compensation at ` 163/- per sq. yard for the land in all the three villages. These were sales pertaining to small parcels of land but were accepted by the Reference Court to be arms length sales for the purposes of applying the comparable sales method of valuation of land. Nothing to the contrary has come in evidence. 30. There is no dispute that the deduction of 30% towards development charges out of the average sale price as mentioned in Exhibit 16A and Exhibit 18C was reasonable. The average sale price of the two sale deeds comes to ` 229 per sq. yard and with a 30% deduction thereon, the Reference Court came to a figure of ` 163 per sq. yard as the compensation due to the claimants.
### Response:
1
### Explanation:
the Award and has/have received the amount of compensation without protest as such the reference is legally not maintainable and is liable to be dismissed.. In the absence of any definitive facts having been pleaded by the State/GDA, it is difficult to come to the conclusion that Chandra Bhan and the other claimants had accepted the compensation without protest.21. With regard to the quantum of compensation granted by the Reference Court, we find that it has come on record that even though the notification under Section 4 of the Act was gazetted on 16th August, 1988 the last date of its publication was 1st October, 1988. It has been held in several decisions including a comparatively recent decision in Usha Stud and Agricultural Farms Private Limited and Ors. v. State of Haryana and Ors. (2013) 4 SCC 210 that the last date of publication and giving of public notice is treated as the date of publication of the notification. It was held in paragraph 20.1 as follows:20.1. Section 4(1) lays down that whenever it appears to the appropriate Government that land in any locality is needed or is likely to be needed for any public purpose or for a company, then a notification to that effect is required to be published in the Official Gazette and two daily newspapers having circulation in the locality. of these, one paper has to be in the regional language. A duty is also cast on the Collector, as defined in Section 3(c), to cause public notice of the substance of such notification to be given at convenient places in the locality. The last date of publication and giving of public notice is treated as the date of publication of the notification.. A similar view was expressed in Surinder Singh Brar and Ors. v. Union of India and Ors. (2013) 1 SCC 403 in paragraph 75 of the Report.23. Under the circumstances, the Reference Court was justified in relying upon the two sale deeds executed before the last date of publication under Section 4 of the Act, that is, 1st October, 1988. As mentioned above, Exhibit 16A was executed on 11th July, 1988 and Exhibit 18C was executed on 23rd August, 1988 well before the last date of publication of the notification under Section 4 of the Act. In our opinion, the High Court erroneously took the view that reliance should not be placed on these sale deeds since they had come into existence either just before the issuance of the notification under Section 4 of the Act or soon after the issuance of that notification insinuating thereby that the sale deeds did not reflect the true market price of the land that was sold through those sale deeds.24. The High Court was also in error in coming to the conclusion that because the two sale deeds Exhibit 16A and Exhibit 18C relate to small parcels of land (150 sq.yds. and 57 sq.yds. respectively) they could not be used as exemplars for determining the market value of the acquired land. It is true that the sale deeds pertain to small parcels of land but it is not usual to find sale transactions of large tracts of land that could give some indication of the market value of the acquired land. In fact, in Special Land Acquisition Officer and Anr. v. M.K. Rafiq Saheb (2011) 7 SCC 714 it was observed that in the normal course it is hardly possible for a claimant to produce sale instances of large tracts of land. In paragraph 24 of the Report it was held as follows:It may also be noticed that in the normal course of events, it is hardly possible for a claimant to produce sale instances of large tracts of land. The sale of land containing large tracts are generally very far and few. Normally, the sale instances would relate to small pieces of land. This limitation of sale transaction cannot operate to the disadvantage of the claimants. Thus, the court should look into sale instances of smaller pieces of land while applying reasonable element of deduction.27. Broadly speaking, as long as the sale is an arms length transaction it would merit consideration by the authorities under the Act for the purposes of determining the market value of the acquired land. That being so, and given the facts of the case, the Reference Court was not in error in adopting the comparable sales method of valuation of land.28. The High Court has noted, and it was pointed out by Learned Counsel for the State/GDA that the SLAO had before him 66 comparable sale deeds for village Harsaon, 48 comparable sale deeds for village Oasna and 105 comparable sale deeds for village Sadarpur but these were overlooked. However, we have noticed from the decision rendered by the Reference Court that these sale deeds were not admissible in evidence and in fact the only sale deeds that were admissible and which were taken into account were those mentioned by the High Court namely:. As mentioned above, out of the above sale deeds, only the sale deeds at Exhibit 16A and Exhibit 18C were relevant and these were rightly taken into account for consideration by the Reference Court in granting compensation at ` 163/- per sq. yard for the land in all the three villages. These were sales pertaining to small parcels of land but were accepted by the Reference Court to be arms length sales for the purposes of applying the comparable sales method of valuation of land. Nothing to the contrary has come in evidence.30. There is no dispute that the deduction of 30% towards development charges out of the average sale price as mentioned in Exhibit 16A and Exhibit 18C was reasonable. The average sale price of the two sale deeds comes to ` 229 per sq. yard and with a 30% deduction thereon, the Reference Court came to a figure of ` 163 per sq. yard as the compensation due to the claimants.
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Ameteep Machine Tools Vs. Labour Court Haryana & Another | was not a signatory to the settlement and that he would settle his dispute himself with the management. The State Government referred the dispute in regard to the termination of Sadhu Singhs service service for adjudication to the Labour Court, Rohtak. While the management took its stand on the facts found in the domestic inquiry report and relied on the circumstance that the settlement dated November 21, 1970 was binding on Sadhu Singh, Sadhu Singh asserted that he was not guilty of any misconduct on August 27, 1970. He also contended that the charge-sheet had never been served on him and therefore the ex parte domestic enquiry was vitiated. The Labour Court by its order dated September 20, 1972 found that Sadhu Singh was not a signatory to the settlement of November 21, 1970, and was, therefore, not bound by it. The Labour Court made its award on September 30, 1974. It found that the domestic enquiry was not proper inasmuch as notice of the enquiry had failed to reach Sadhu Singh because it had been sent to a wrong address, thereby preventing him from participating in the domestic enquiry. On the merits of the dispute the Labour Court found that Sadhu Singh had been ill from August 24 to September 9, 1970, and that was established by a medical certificate which on enquiry from the Employees State Insurance Department, was found to be in order, and consequently it could not be believed that the workman had instigated or participated in the "tool down" and "sit down" strike. In support of its case that Sadhu Singh was present within the factory premises on August 27, 1970, the management placed reliance on a document purporting to have been singed by the workman and setting forth the assurance that he would conduct himself properly and be of good behavior. The Labour Court said that if the document be accepted as genuine there was sufficient reason for accepting the assurance and refraining from taking any action against the workman. The Labour Court held that the dismissal was not justified and that Sadhu Singh was entitled to reinstatement with continuity of previous service and full back wages.3. The appellant filed a writ petition in the High Court against the award, but the writ petition was dismissed. And now this appeal.4. The appellant challenges the findings of the Labour Court. It is contended that the settlement dated November 21, 1970 was binding on Sadhu Singh and it was not open to him to resile from it. Now Section36 of the Act provides for representation of the parties to a dispute. The workmen are entitled by virtue of sub-section(1) to be represented in a proceeding under the Act by a member of the executive or other office-bearer of a registered trade union is affiliated, and where the workman is not a member of any trade union, he can be represented by a member of the executive or other office-bearer of a trade union connected with, or by any other workman employed in, the industry in which the workman is employed. It is not obligatory, however, that a workman who is a party to a dispute must be represented by another. He may participate in the proceeding himself. Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the proceedings personally and are not represented by any of the persons mentioned in Section 36 (1). That is what happened here. The evidence shows that the individual workmen negotiated the settlement themselves and individually signed the memorandum of settlement. By executing a memorandum they bound themselves by the terms of the settlement. In the present case, however, while several workmen signed the memorandum of settlement on November 21, 1970, Sadhu Singh did not. It is also established that Sadhu Singh did not authorise any of the other workmen to sign the memorandum on his behalf. And what is of importance is that, as found by the Labour Court, the demand that the dismissal of Sadhu Singh be set aside and that he should be reinstated was never included in the charter of demands of the workmen which led to the conciliation proceedings, and those proceedings did not involve the consideration of such a demand. According to the Labour Court, that was the admitted position. Consequently, the settlement of November 21, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh. In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of November 21, 1970 did not bind him. The Labour Court was right in adjudicating on the property of his dismissal and, having found that the dismissal was not justified, in granting relief.5. It is submitted that notice of the domestic enquiry was duly effected on Sadhu Singh and the finding of the Labour Court to the contrary is erroneous. Plainly, the question turns on the evidence on the record and we see no reason why the fining of the Labour Court should not be accepted. Having reached the conclusion that the domestic enquiry, in the circumstances, was improper it was open to the Labour Court to enter into the dispute on its merits and pronounce its award. The finding that Sadhu Singh was ill and could not be said to have instigated or participated in the strike on August 27, 1970 is a finding of fact which proceeds from the material on the record. We are not satisfied that the finding should be disturbed.6. Considerable reliance was placed by the appellant on the document said to have been executed by the workmen containing the assurance that he would be of good behaviour and, it is submitted, that after executing the document Sadhu Singh went back on the assurance and set the strike in motion. | 1[ds]The workmen are entitled by virtue of sub-section(1) to be represented in a proceeding under the Act by a member of the executive or other office-bearer of a registered trade union is affiliated, and where the workman is not a member of any trade union, he can be represented by a member of the executive or other office-bearer of a trade union connected with, or by any other workman employed in, the industry in which the workman is employed. It is not obligatory, however, that a workman who is a party to a dispute must be represented by another. He may participate in the proceeding himself. Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the proceedings personally and are not represented by any of the persons mentioned in Section 36 (1). That is what happened here. The evidence shows that the individual workmen negotiated the settlement themselves and individually signed the memorandum of settlement. By executing a memorandum they bound themselves by the terms of the settlement. In the present case, however, while several workmen signed the memorandum of settlement on November 21, 1970, Sadhu Singh did not. It is also established that Sadhu Singh did not authorise any of the other workmen to sign the memorandum on his behalf. And what is of importance is that, as found by the Labour Court, the demand that the dismissal of Sadhu Singh be set aside and that he should be reinstated was never included in the charter of demands of the workmen which led to the conciliation proceedings, and those proceedings did not involve the consideration of such a demand. According to the Labour Court, that was the admitted position. Consequently, the settlement of November 21, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh. In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of November 21, 1970 did not bind him. The Labour Court was right in adjudicating on the property of his dismissal and, having found that the dismissal was not justified, in granting relief.5. It is submitted that notice of the domestic enquiry was duly effected on Sadhu Singh and the finding of the Labour Court to the contrary is erroneous. Plainly, the question turns on the evidence on the record and we see no reason why the fining of the Labour Court should not be accepted. Having reached the conclusion that the domestic enquiry, in the circumstances, was improper it was open to the Labour Court to enter into the dispute on its merits and pronounce its award. The finding that Sadhu Singh was ill and could not be said to have instigated or participated in the strike on August 27, 1970 is a finding of fact which proceeds from the material on the record. We are not satisfied that the finding should be disturbed. | 1 | 1,662 | 568 | ### 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:
was not a signatory to the settlement and that he would settle his dispute himself with the management. The State Government referred the dispute in regard to the termination of Sadhu Singhs service service for adjudication to the Labour Court, Rohtak. While the management took its stand on the facts found in the domestic inquiry report and relied on the circumstance that the settlement dated November 21, 1970 was binding on Sadhu Singh, Sadhu Singh asserted that he was not guilty of any misconduct on August 27, 1970. He also contended that the charge-sheet had never been served on him and therefore the ex parte domestic enquiry was vitiated. The Labour Court by its order dated September 20, 1972 found that Sadhu Singh was not a signatory to the settlement of November 21, 1970, and was, therefore, not bound by it. The Labour Court made its award on September 30, 1974. It found that the domestic enquiry was not proper inasmuch as notice of the enquiry had failed to reach Sadhu Singh because it had been sent to a wrong address, thereby preventing him from participating in the domestic enquiry. On the merits of the dispute the Labour Court found that Sadhu Singh had been ill from August 24 to September 9, 1970, and that was established by a medical certificate which on enquiry from the Employees State Insurance Department, was found to be in order, and consequently it could not be believed that the workman had instigated or participated in the "tool down" and "sit down" strike. In support of its case that Sadhu Singh was present within the factory premises on August 27, 1970, the management placed reliance on a document purporting to have been singed by the workman and setting forth the assurance that he would conduct himself properly and be of good behavior. The Labour Court said that if the document be accepted as genuine there was sufficient reason for accepting the assurance and refraining from taking any action against the workman. The Labour Court held that the dismissal was not justified and that Sadhu Singh was entitled to reinstatement with continuity of previous service and full back wages.3. The appellant filed a writ petition in the High Court against the award, but the writ petition was dismissed. And now this appeal.4. The appellant challenges the findings of the Labour Court. It is contended that the settlement dated November 21, 1970 was binding on Sadhu Singh and it was not open to him to resile from it. Now Section36 of the Act provides for representation of the parties to a dispute. The workmen are entitled by virtue of sub-section(1) to be represented in a proceeding under the Act by a member of the executive or other office-bearer of a registered trade union is affiliated, and where the workman is not a member of any trade union, he can be represented by a member of the executive or other office-bearer of a trade union connected with, or by any other workman employed in, the industry in which the workman is employed. It is not obligatory, however, that a workman who is a party to a dispute must be represented by another. He may participate in the proceeding himself. Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the proceedings personally and are not represented by any of the persons mentioned in Section 36 (1). That is what happened here. The evidence shows that the individual workmen negotiated the settlement themselves and individually signed the memorandum of settlement. By executing a memorandum they bound themselves by the terms of the settlement. In the present case, however, while several workmen signed the memorandum of settlement on November 21, 1970, Sadhu Singh did not. It is also established that Sadhu Singh did not authorise any of the other workmen to sign the memorandum on his behalf. And what is of importance is that, as found by the Labour Court, the demand that the dismissal of Sadhu Singh be set aside and that he should be reinstated was never included in the charter of demands of the workmen which led to the conciliation proceedings, and those proceedings did not involve the consideration of such a demand. According to the Labour Court, that was the admitted position. Consequently, the settlement of November 21, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh. In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of November 21, 1970 did not bind him. The Labour Court was right in adjudicating on the property of his dismissal and, having found that the dismissal was not justified, in granting relief.5. It is submitted that notice of the domestic enquiry was duly effected on Sadhu Singh and the finding of the Labour Court to the contrary is erroneous. Plainly, the question turns on the evidence on the record and we see no reason why the fining of the Labour Court should not be accepted. Having reached the conclusion that the domestic enquiry, in the circumstances, was improper it was open to the Labour Court to enter into the dispute on its merits and pronounce its award. The finding that Sadhu Singh was ill and could not be said to have instigated or participated in the strike on August 27, 1970 is a finding of fact which proceeds from the material on the record. We are not satisfied that the finding should be disturbed.6. Considerable reliance was placed by the appellant on the document said to have been executed by the workmen containing the assurance that he would be of good behaviour and, it is submitted, that after executing the document Sadhu Singh went back on the assurance and set the strike in motion.
### Response:
1
### Explanation:
The workmen are entitled by virtue of sub-section(1) to be represented in a proceeding under the Act by a member of the executive or other office-bearer of a registered trade union is affiliated, and where the workman is not a member of any trade union, he can be represented by a member of the executive or other office-bearer of a trade union connected with, or by any other workman employed in, the industry in which the workman is employed. It is not obligatory, however, that a workman who is a party to a dispute must be represented by another. He may participate in the proceeding himself. Where conciliation proceedings are taken and a settlement is reached, it is a valid settlement and binding on the parties even if the workmen who are party to the dispute participate in the proceedings personally and are not represented by any of the persons mentioned in Section 36 (1). That is what happened here. The evidence shows that the individual workmen negotiated the settlement themselves and individually signed the memorandum of settlement. By executing a memorandum they bound themselves by the terms of the settlement. In the present case, however, while several workmen signed the memorandum of settlement on November 21, 1970, Sadhu Singh did not. It is also established that Sadhu Singh did not authorise any of the other workmen to sign the memorandum on his behalf. And what is of importance is that, as found by the Labour Court, the demand that the dismissal of Sadhu Singh be set aside and that he should be reinstated was never included in the charter of demands of the workmen which led to the conciliation proceedings, and those proceedings did not involve the consideration of such a demand. According to the Labour Court, that was the admitted position. Consequently, the settlement of November 21, 1970 can on no account be understood as covering and concluding the demand for recalling the order dismissing Sadhu Singh. In the circumstances, it was open to Sadhu Singh to assail his dismissal from service and to contend that the settlement of November 21, 1970 did not bind him. The Labour Court was right in adjudicating on the property of his dismissal and, having found that the dismissal was not justified, in granting relief.5. It is submitted that notice of the domestic enquiry was duly effected on Sadhu Singh and the finding of the Labour Court to the contrary is erroneous. Plainly, the question turns on the evidence on the record and we see no reason why the fining of the Labour Court should not be accepted. Having reached the conclusion that the domestic enquiry, in the circumstances, was improper it was open to the Labour Court to enter into the dispute on its merits and pronounce its award. The finding that Sadhu Singh was ill and could not be said to have instigated or participated in the strike on August 27, 1970 is a finding of fact which proceeds from the material on the record. We are not satisfied that the finding should be disturbed.
|
Maharashtra Rajya Mathadi Transport And Central Kamgar Union Vs. State Of Maharashtra And Ors | registration as an employer, etc. The necessary particulars are given below1. Name and address of the Establishment and Telephone No2. Whether a firm or a company Name of the proprietor. (1)(2)(1)(2)3. Are you a member of any Association of employer ? If so, state the name of the Association4. Whether your Establishment is registered under the Bombay Shops and Establishments Act, 1948. If so, state Registration No5. The place (s) of work with location in details where the loading, unloading, stacking, carrying, etc., of goods is carried on in connection with trade/business of your Establishment6. Are you employing workers through contractor (s) ? If so, state the name and other details of the contractor (s)7. Are you employing workers through Tolli ? If so, state the name of the Mukadam/s of the Tolli/s, or of all workersDatePlaceSignature of the ApplicantBy order and in the name of theGovernor of MaharashtraN. N. PANDYADesk Officer" 20. If the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme | 1[ds]17. Form the above, it follows, that where a Hundekari has an establishment over which he has ultimate control or has an establishment the affairs of which are entrusted to him and he engages mathadi workers either on hire or otherwise for carrying on the work of such establishment, such Hundekari could be regarded as an employed within the meaning of Section 2(3) of the Act, as is held by the High Court. On the other hand, a Hundekari, who does not engage the mathadi workers for the work of an establishment not belonging to him or on the affairs of which he has no ultimate control or the affairs of which are not entrusted to him, cannot be regarded as an employer with the meaning of Section 2(3) of the Act. The decision taken by the Government and the view taken by the High Court that even Hundekaris who have neither control over the establishment nor are entrusted with the affairs of the establishment are, employers within the meaning of Section 2(3) of the Act, is manifestlyIf the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme | 1 | 3,992 | 1,111 | ### 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:
registration as an employer, etc. The necessary particulars are given below1. Name and address of the Establishment and Telephone No2. Whether a firm or a company Name of the proprietor. (1)(2)(1)(2)3. Are you a member of any Association of employer ? If so, state the name of the Association4. Whether your Establishment is registered under the Bombay Shops and Establishments Act, 1948. If so, state Registration No5. The place (s) of work with location in details where the loading, unloading, stacking, carrying, etc., of goods is carried on in connection with trade/business of your Establishment6. Are you employing workers through contractor (s) ? If so, state the name and other details of the contractor (s)7. Are you employing workers through Tolli ? If so, state the name of the Mukadam/s of the Tolli/s, or of all workersDatePlaceSignature of the ApplicantBy order and in the name of theGovernor of MaharashtraN. N. PANDYADesk Officer" 20. If the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme
### Response:
1
### Explanation:
affairs of which are entrusted to him and he engages mathadi workers either on hire or otherwise for carrying on the work of such establishment, such Hundekari could be regarded as an employed within the meaning of Section 2(3) of the Act, as is held by the High Court. On the other hand, a Hundekari, who does not engage the mathadi workers for the work of an establishment not belonging to him or on the affairs of which he has no ultimate control or the affairs of which are not entrusted to him, cannot be regarded as an employer with the meaning of Section 2(3) of the Act. The decision taken by the Government and the view taken by the High Court that even Hundekaris who have neither control over the establishment nor are entrusted with the affairs of the establishment are, employers within the meaning of Section 2(3) of the Act, is manifestlyIf the text of clause 14 and the particulars required to be filled up by the employer in Form A are seen together, they make it abundantly clear that the employer required to be registered under clause 14 with the Board is none other than the employer falling within the definition of employer in Section 2(3) of the Act. When clause 14 states that every employer, including a mukadam, commission agent, clearing agent, purchaser, importer, exporter engaged in selling, purchasing or trading or acting as agent in vegetable market and other establishments in the areas to which the Scheme applies shall get registered with the Board by applying in Form A appended to the Scheme it makes abundantly clear that such employer must have an establishment of his own over the affairs of which he has ultimate control or must have an establishment the affairs of which are entrusted to him. If a person wants to register himself as an employer under that Scheme, he has to show as a condition precedent that he has an establishment the business affairs of which are entrusted to him, becomes obvious for the reason that Item 1 of Form A requires him to give the name and address of the establishment and telephone number and under Item 4 thereof requires him to give the information as to whether the said establishment is registered under the Bombay Shops and Establishments Act, 1948 with registration number. Therefore, if a person wants to register as an employer under clause 14 of the Scheme, the Board cannot register him as such unless he has an establishment on the business of which he has ultimate control or he has an establishment the business affairs of which are entrusted to him for being carried on. When later part of clause 14 states "provided, however, that an employer of any establishment coming into existence after the commencement of this Scheme shall apply for a registration simultaneously on the commencement of his business, " would clearly support the view we have expressed of clause 14 that the person who is required to get himself registered as an employer under clause 14 must, as a condition precedent, have an establishment over the business affairs of which he has ultimate control or must be a person entrusted with carrying on the business affairs of such establishment, i.e., of establishments carrying on business in vegetables, including onions and potatoes21. Thus, if Hundekaris have to get themselves registered as employers under clause 14 there is no room for doubt that they are entitled to be registered as employers thereunder if they own markets or establishments doing the business in vegetables including onions and potatoes having ultimate control over such markets or establishments or are entrusted with the carrying on the affairs of such markets or establishment or are entrusted with the carrying on the affairs of such markets or establishments. However, if Hundekaris do not have vegetable markets or establishments of their own over which they have ultimate control or if carrying on the affairs of vegetable markets or establishments are not entrusted to them, they cannot be registered as employers under clause 14 of the Scheme. The decision of the Government and the view taken by the High Court to the extent it is not in consonance with what we have said as to the right of the Hundekaris to get themselves registered as employers under clause 14 of the Scheme, we have to hold, is manifestly erroneous22. Hence, what emerges from a proper reading and understanding of the definitions in the Act relating to "principal employer", employer, establishment, "scheduled employment", contractor and clause 14 of the Scheme and Form A appended thereto can be summarised thus23. That the Board can register Hundekaris, by whatever name they may be called, under clause 14 of the Scheme as the employers only where it is established that they are the owners of the vegetable markets or establishments where they are carrying on the business either having ultimate control over such establishments or being entrusted with the carrying on the affairs of such markets or establishments and not otherwise. If any of the Hundekaris, by whatever name may be called, are registered as employers under clause 14 of the Scheme not being the owners of the vegetable markets or establishments in the areas concerned having either ultimate control over them or being entrusted with the carrying on the affairs of the same, their registration is liable to be cancelled24. What we have said as regards registration of Hundekaris as employers or cancellation of registration of employers under clause 14 of the Scheme, shall not, however, come in the way of the Board for registering any person who owns a vegetable market or establishment, and has ultimate control over the business of such market or of registering any person who is carrying on the business affairs of such market or establishment being so entrusted as an employer under clause 14 of the Scheme on submission of an application in the form appended to the Scheme
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NAGPUR IMPROVEMENT TRUST Vs. M/S. BOMBAYWALA | noted that, on one hand, the High Court has specifically observed in paragraph 86 that the High Court has not set aside and it is also not necessary for theHigh Court to set aside the layout plan and the building permit granted by the NIT, the observations made by the High Court in paragraph 89(2) would tantamount to virtually quashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observations made by the High Court in paragraph 89(2),the observation made by the High Court in earlier part of the judgment virtually restrains the original land owners/developers not to put up any construction on thebuildinglayoutplan and thebuilding permitgranted under the MRTP Act.Therefore, it appears that though not specifically quashing and setting aside the sanctioned layout plan and the building permit granted under the MRTP Act, the High Court has nullified the sanctioned layout plan and the building permit granted under the MRTP Act. 11.15 It is also required to be noted that the dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants.Now, only 18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers.As,at this stage,it is required to be noted that even those tenants with whom the original land owners/developers have entered into a compromise before this Court have appeared through the Advocate and have stated that they are out of possession since last more than ten years and therefore, they all have requested to quash and set aside the impugned judgment and order passed by the High Court and permit the land owners/developers to complete the construction. 11.16 Insofar as the submission made by the learned counsel appearing on behalf of the original writ petitioners that after the impugned judgment and order passed by the High Court, the NIT has modified the Scheme as permitted by the High Court and, therefore, the impugned judgment and order passed by the High Court is acted upon and, therefore, the impugned judgment and order passed by the High Court may not be permitted to be challenged by the NIT and/or the developer is concerned, the same has no substance.Merely because to avoid any further legal complication, if the NIT has modified the Scheme that would not preclude the NIT and/or the original land owners/developers to challenge the impugned judgment and order. 11.17 In view of the above submissions and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court deserves to be quashed and set aside. TRANSFERRED CASE © No.23/2018: 12. Now, so far as the Transferred Case © No.23/2018 is concerned, the Writ Petition filed by the original writ petitioners being WritPetition No.5005 of2017has been transferred to this Court pursuant to the order passed by this Court dated 03.11.2017. In the petition, the original writ petitioner have prayed to quash and set aside the Notification dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167 dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which the original Scheme of 1964 sanctioned under Section 45 of the NIT Act has been modified in exercise of power under Section 45 of the NIT Act and the 15 metres internal road has been deleted. 12.1 It is vehemently submitted on behalf of the original writ petitioners that the Notification modifying the Scheme and deleting 15 metresinternal road iswithout followingany procedure as required under the Act and without inviting any objections and even the approval of the State Government has not been obtained.However, considering the contents of the counter affidavit filed on behalf of the NIT in which it is specifically stated that after considering the objections sent by the 15 writ petitioners in Petition No.2017, the Authority unanimously passed a Board Resolutionin exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to the petitioners. The decision to modify the Scheme by deleting 15 metres internal road has been taken after considering the objections raised by the writ petitioners.It is required to be noted that Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act.It is required to be noted that when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001,the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned under the MRTP Act,the same cannot be said to be illegal warranting interference of this Court.Therefore, challenge to the Notification dated 21.04.2017 issued by the NIT and the respective NIT Resolution modifying the Scheme deleting 15 metres internal road fails. | 1[ds]11.8 Section 43 of the MRTP Act provides for restrictions on development of the land after the date on which the declaration of intention to prepare the Development Plan for any area is published in the official gazette except as provided under proviso to Section 43 of the Act.Section 46 ofthe MRTP Actprovides that the PlanningAuthorityin considering the application for permission for development shallhave due regard to the provisionsof any draft or final planor proposals published by means of notice submitted or sanctioned under the MRTP Act.Section 59 of the MRTP Act provides for preparation of the Scheme under the MRTP Act, which specifically provides that the Planning Authority may prepare one or more Town Planning Scheme for the area within its jurisdiction or any part thereof for the purpose of implementing the proposals in the Final Development Plan. As such, we not concerned with Section 59 of the MRTP Act, as in the present case, the Scheme which provides 15 metres internal road was prepared and sanctioned under the provisions of the NITAct and prior to the enactment of MRTP Act and, therefore, Section 39 read with Section 92 shall be applicable11.9 Therefore, on conjoint reading of Sections 39, 43, 46 and even Section 59 of the MRTP Act, the Development Plans prepared and sanctioned under the provisions ofthe MRTP Act shall prevail. Therefore, there cannot be any development and/or construction permitted contrary to the Development Plan prepared and sanctioned under the provisions of the MRTP Act, though the Scheme prepared and sanctioned under Section 45 of the NIT Act may permit such development and/or construction. As such, the aforesaid view which we are taking is supported by the decision of this Court in the case of Manohar Joshi (supra). In the case of Manohar Joshi (supra), after considering the relevant provisions of the MRTP Act as well as the NIT Act, this Court has specifically observed and held that when there is a conflict between the Development Plan prepared and sanctioned under the provisions of MRTP Act and the Scheme sanctioned under the provisions of the NIT Act, the DP shall override the TP Scheme.It is also further observed that even if the variation, as directed under Section 39 of the MRTP Act does not take place,the land cannot be put to use, in any way, in contradiction with the provisions of DP Plan.In the case ofManohar Joshi(supra)this Courtconfirmed the findings recorded by the High Court that the DP Plan overrides the TP Scheme. This Court did not accept the submission that the Development Plan and the TP Scheme operate independent of each other and, until the State Government exercise its power of eminent domain under the Development Plan, and acquires the land, the land owners can develop its property as per the user permitted under the TP Scheme.While not accepting the above submission, it is observed by this Court that permitting a development contrary to the provisions of the Development Plan, knowing fully well that the user under the TP Scheme is at variance in the Development Plan will make provisions of Sections 39, 42, 46 and 52 of the MRTP Act meaningless.Therefore, the contrary observation and finding recorded by the High Court that unless and until the Scheme is varied under Section 46 of the NIT Act as required under provisions of Section 39 of the MRTP Act, the Scheme sanctioned under Section 45 of the NIT Act shall subsist and can be enforced, cannot be sustainedand the same deservestobequashedand set aside11.10 It is required to be noted that though in the Scheme sanctioned under the provisions of the NIT Act proposing 15 metres internal road was in operation since 23.01.1964,when the MRTP Act came into force and even thereafter when the First Development Plan was sanctioned under Section 31 of the MRTP Act for Nagpur in the year 1976 in whichthere was no proposal for 15 metres internal road, and even thereafter, twice the Development Plan was revised first in the year 1989 and again in the year 2001 in which also there was no provision for the 15 metres internal road, despite the above, at no point of time, anybody including the original writ petitioners challenged the Development Plan under the MRTP Act in which the 15 metres internal road was not shown.Even thereafter also, at no point of time, and even in the writ petition, the original writ petitioners challenged and prayed to set aside the Development Plan in which there was no provision for 15 metres internal road, though the same was mentioned in the Scheme prepared and sanctioned under Section 45 of the NIT Act11.11 It is also required to be noted that even the land owners/developers have got the layout plan sanctioned and obtained the building permission under the provisions of the MRTP Act.Considering the object and purpose of the MRTP Act noted hereinabove, it appears that though there was a provision for internal 15 metres road in the Scheme under the NIT Act which was sanctioned in the year 1964, thereafter much development had taken place and there are changed circumstances. In the Development Plan/revised Development Plan the existing road came to be widened from 12 metres to 24 metres and, therefore, when the DP was prepared and sanctioned under the MRTP Act, there was no proposal for 15 metres internal wide road. As discussed hereinabove, the Development Plan prepared and sanctioned under the MRTP Act would override the TP Scheme. As observed hereinabove, there cannot be any development and/or construction permitted contrary to the DP Plan under the MRTP Act. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained11.12 A faint attempt was made on behalf of the original writ petitioners that, in the DP Plan, there was punctuated line which can be said to be 15 metres internal road from Abhyankar Road.However, on considering the part plan of sanctioned Development Plan of Nagpur City sanctioned by Notification dated 10.09.2001 (upon which the reliance has been placed by the original writ petitioners), the aforesaid cannot be accepted. As rightly contended on behalf of the NIT, the punctuated lines are described as Mouza Boundary/NIT Scheme Boundary.It is to be noted that even the High Courtnoted that there is a conflict between the DP Plan and the Scheme sanctioned under Section 45 of the NIT Act11.13 Even the findings recorded by the High Court that the action of the NIT in sanctioning the layout plan and granting building permit is mischief of law, cannot be accepted.The layout plans are sanctioned and the building permit has been granted absolutely in consonance with the DP sanctioned under the MRTP Act.The demolition notices were received pursuant to and in furtherance of the building permit and so as to enable the original land owners/developersto put upthe constructionas perthe layout plan sanctioned and the building permit granted. Therefore, the High Court has erred in holding that the action of the NIT was mischief in law11.14 It is required to be noted that, on one hand, the High Court has specifically observed in paragraph 86 that the High Court has not set aside and it is also not necessary for theHigh Court to set aside the layout plan and the building permit granted by the NIT, the observations made by the High Court in paragraph 89(2) would tantamount to virtually quashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observations made by the High Court in paragraph 89(2),the observation made by the High Court in earlier part of the judgment virtually restrains the original land owners/developers not to put up any construction on thebuildinglayoutplan and thebuilding permitgranted under the MRTP Act.Therefore, it appears that though not specifically quashing and setting aside the sanctioned layout plan and the building permit granted under the MRTP Act, the High Court has nullified the sanctioned layout plan and the building permit granted under the MRTP Act11.15 It is also required to be noted that the dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants.Now, only 18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers.As,at this stage,it is required to be noted that even those tenants with whom the original land owners/developers have entered into a compromise before this Court have appeared through the Advocate and have stated that they are out of possession since last more than ten years and therefore, they all have requested to quash and set aside the impugned judgment and order passed by the High Court and permit the land owners/developers to complete the construction11.16 Insofar as the submission made by the learned counsel appearing on behalf of the original writ petitioners that after the impugned judgment and order passed by the High Court, the NIT has modified the Scheme as permitted by the High Court and, therefore, the impugned judgment and order passed by the High Court is acted upon and, therefore, the impugned judgment and order passed by the High Court may not be permitted to be challenged by the NIT and/or the developer is concerned, the same has no substance.Merely because to avoid any further legal complication, if the NIT has modified the Scheme that would not preclude the NIT and/or the original land owners/developers to challenge the impugned judgment and order11.17 In view of the above submissions and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court deserves to be quashed and set asideTRANSFERRED CASE © No.23/2018:12. Now, so far as the Transferred Case © No.23/2018 is concerned, the Writ Petition filed by the original writ petitioners being WritPetition No.5005 of2017has been transferred to this Court pursuant to the order passed by this Court dated 03.11.2017. In the petition, the original writ petitioner have prayed to quash and set aside the Notification dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167 dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which the original Scheme of 1964 sanctioned under Section 45 of the NIT Act has been modified in exercise of power under Section 45 of the NIT Act and the 15 metres internal road has been deleted12.1 It is vehemently submitted on behalf of the original writ petitioners that the Notification modifying the Scheme and deleting 15 metresinternal road iswithout followingany procedure as required under the Act and without inviting any objections and even the approval of the State Government has not been obtained.However, considering the contents of the counter affidavit filed on behalf of the NIT in which it is specifically stated that after considering the objections sent by the 15 writ petitioners in Petition No.2017, the Authority unanimously passed a Board Resolutionin exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to the petitioners. The decision to modify the Scheme by deleting 15 metres internal road has been taken after considering the objections raised by the writ petitioners.It is required to be noted that Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act.It is required to be noted that when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001,the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned under the MRTP Act,the same cannot be said to be illegal warranting interference of this Court.Therefore, challenge to the Notification dated 21.04.2017 issued by the NIT and the respective NIT Resolution modifying the Scheme deleting 15 metres internal road fails. | 1 | 9,701 | 2,321 | ### 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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noted that, on one hand, the High Court has specifically observed in paragraph 86 that the High Court has not set aside and it is also not necessary for theHigh Court to set aside the layout plan and the building permit granted by the NIT, the observations made by the High Court in paragraph 89(2) would tantamount to virtually quashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observations made by the High Court in paragraph 89(2),the observation made by the High Court in earlier part of the judgment virtually restrains the original land owners/developers not to put up any construction on thebuildinglayoutplan and thebuilding permitgranted under the MRTP Act.Therefore, it appears that though not specifically quashing and setting aside the sanctioned layout plan and the building permit granted under the MRTP Act, the High Court has nullified the sanctioned layout plan and the building permit granted under the MRTP Act. 11.15 It is also required to be noted that the dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants.Now, only 18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers.As,at this stage,it is required to be noted that even those tenants with whom the original land owners/developers have entered into a compromise before this Court have appeared through the Advocate and have stated that they are out of possession since last more than ten years and therefore, they all have requested to quash and set aside the impugned judgment and order passed by the High Court and permit the land owners/developers to complete the construction. 11.16 Insofar as the submission made by the learned counsel appearing on behalf of the original writ petitioners that after the impugned judgment and order passed by the High Court, the NIT has modified the Scheme as permitted by the High Court and, therefore, the impugned judgment and order passed by the High Court is acted upon and, therefore, the impugned judgment and order passed by the High Court may not be permitted to be challenged by the NIT and/or the developer is concerned, the same has no substance.Merely because to avoid any further legal complication, if the NIT has modified the Scheme that would not preclude the NIT and/or the original land owners/developers to challenge the impugned judgment and order. 11.17 In view of the above submissions and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court deserves to be quashed and set aside. TRANSFERRED CASE © No.23/2018: 12. Now, so far as the Transferred Case © No.23/2018 is concerned, the Writ Petition filed by the original writ petitioners being WritPetition No.5005 of2017has been transferred to this Court pursuant to the order passed by this Court dated 03.11.2017. In the petition, the original writ petitioner have prayed to quash and set aside the Notification dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167 dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which the original Scheme of 1964 sanctioned under Section 45 of the NIT Act has been modified in exercise of power under Section 45 of the NIT Act and the 15 metres internal road has been deleted. 12.1 It is vehemently submitted on behalf of the original writ petitioners that the Notification modifying the Scheme and deleting 15 metresinternal road iswithout followingany procedure as required under the Act and without inviting any objections and even the approval of the State Government has not been obtained.However, considering the contents of the counter affidavit filed on behalf of the NIT in which it is specifically stated that after considering the objections sent by the 15 writ petitioners in Petition No.2017, the Authority unanimously passed a Board Resolutionin exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to the petitioners. The decision to modify the Scheme by deleting 15 metres internal road has been taken after considering the objections raised by the writ petitioners.It is required to be noted that Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act.It is required to be noted that when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001,the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned under the MRTP Act,the same cannot be said to be illegal warranting interference of this Court.Therefore, challenge to the Notification dated 21.04.2017 issued by the NIT and the respective NIT Resolution modifying the Scheme deleting 15 metres internal road fails.
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law11.14 It is required to be noted that, on one hand, the High Court has specifically observed in paragraph 86 that the High Court has not set aside and it is also not necessary for theHigh Court to set aside the layout plan and the building permit granted by the NIT, the observations made by the High Court in paragraph 89(2) would tantamount to virtually quashing and setting aside the sanctioned layout plan in the building permit.The sum and substance and the resultant effect of the observations made by the High Court in paragraph 89(2),the observation made by the High Court in earlier part of the judgment virtually restrains the original land owners/developers not to put up any construction on thebuildinglayoutplan and thebuilding permitgranted under the MRTP Act.Therefore, it appears that though not specifically quashing and setting aside the sanctioned layout plan and the building permit granted under the MRTP Act, the High Court has nullified the sanctioned layout plan and the building permit granted under the MRTP Act11.15 It is also required to be noted that the dispute is pending since many years. The land owners/developers entered into compromise with other similarly situated tenants.Now, only 18 tenants are opposing the development, though the land owners/developers have agreed and are ready and willing to give similar treatment to them also which would be given to other tenants as agreed before this Court. It appears that for some reasons and/or to pressurize the land owners/ developers to give them some more benefits, the original writ petitioners are opposing the development/construction. Though the original land owners/developers are having the building permission and have got their plans sanctioned under the provisions of MRTP Act and even after incurring huge expenses, they are not in a position to put up any further construction because of the pending litigation. Therefore, the equity would also be in favour of the appellants as land owners/developers.As,at this stage,it is required to be noted that even those tenants with whom the original land owners/developers have entered into a compromise before this Court have appeared through the Advocate and have stated that they are out of possession since last more than ten years and therefore, they all have requested to quash and set aside the impugned judgment and order passed by the High Court and permit the land owners/developers to complete the construction11.16 Insofar as the submission made by the learned counsel appearing on behalf of the original writ petitioners that after the impugned judgment and order passed by the High Court, the NIT has modified the Scheme as permitted by the High Court and, therefore, the impugned judgment and order passed by the High Court is acted upon and, therefore, the impugned judgment and order passed by the High Court may not be permitted to be challenged by the NIT and/or the developer is concerned, the same has no substance.Merely because to avoid any further legal complication, if the NIT has modified the Scheme that would not preclude the NIT and/or the original land owners/developers to challenge the impugned judgment and order11.17 In view of the above submissions and for the reasons stated hereinabove, the impugned judgment and order passed by the High Court deserves to be quashed and set asideTRANSFERRED CASE © No.23/2018:12. Now, so far as the Transferred Case © No.23/2018 is concerned, the Writ Petition filed by the original writ petitioners being WritPetition No.5005 of2017has been transferred to this Court pursuant to the order passed by this Court dated 03.11.2017. In the petition, the original writ petitioner have prayed to quash and set aside the Notification dated 21.04.2017 issued by the NIT and the NIT Resolution No.27/1167 dated 07.03.2017 and Resolution No.17/1165 dated 03.01.2017 by which the original Scheme of 1964 sanctioned under Section 45 of the NIT Act has been modified in exercise of power under Section 45 of the NIT Act and the 15 metres internal road has been deleted12.1 It is vehemently submitted on behalf of the original writ petitioners that the Notification modifying the Scheme and deleting 15 metresinternal road iswithout followingany procedure as required under the Act and without inviting any objections and even the approval of the State Government has not been obtained.However, considering the contents of the counter affidavit filed on behalf of the NIT in which it is specifically stated that after considering the objections sent by the 15 writ petitioners in Petition No.2017, the Authority unanimously passed a Board Resolutionin exercise of power under Section 46 of the Act.Therefore, it cannot be said that no opportunity at all was given to the petitioners. The decision to modify the Scheme by deleting 15 metres internal road has been taken after considering the objections raised by the writ petitioners.It is required to be noted that Section 39 of the MRTP Act mandates the Planning Authority to vary the Scheme in line with the Development Plan sanctioned under the MRTP Act.It is required to be noted that when the DP was sanctioned, without any proposal for the 15 metres internal road, first in the year 1976 and thereafter in the years 1989 and 2001,the same was after following the due procedure and the same was approved and sanctioned by the State Government. Therefore, thereafter, when the Scheme to the extent in conflict with the DP Plan has been modified as mandated under Section 39 of the MRTP Act, after considering the objections raised by the original writ petitioners, thereafter, the same cannot be said to be illegal. Therefore, reading Section 39 of the MRTP Act and the provisions of the NIT Act harmoniously, the impugned Notification modifying the Scheme and/or Board Resolution modifying the Scheme deleting 15 metres wide road,which would now be in line with the Development Plan sanctioned under the MRTP Act,the same cannot be said to be illegal warranting interference of this Court.Therefore, challenge to the Notification dated 21.04.2017 issued by the NIT and the respective NIT Resolution modifying the Scheme deleting 15 metres internal road fails.
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Union Of India Vs. Ashok Kumar Aggarwal | the Tribunal. (Emphasis added) 34. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was considered by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745 , observing: 25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. 26. Passing an order for an unauthorised purpose constitutes malice in law. 35. The record of the case reveals that this Court has granted interim order dated 8.10.2012 staying the operation of the judgment and order dated 1.6.2012 but that would not absolve the appellants from passing an illegal, unwarranted and uncalled for order of renewal of suspension on 31.7.2012 and if that order was void, we are very much doubtful about the sanctity/validity of the orders passed on 21.1.2013 and 17.7.2013. It further creates doubt whether the appellants, who had acted such unreasonably or illegally, are entitled for any relief before this Court. The Tribunal and the High Court were right that the appellants had not followed the directions of the Tribunal issued on 16.12.2011 and the mandate of Departments O.M. dated 7.1.2004. There is no gainsaid in saying that the terms of the said O.M. were required to be observed. 36. It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitable cases and very sparingly. The law is to be tempered with equity and the court can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so. (Vide: Pritam Singh v. The State, AIR 1950 SC 169 ; Taherakhatoon (D) by Lrs. v. Salambin Mohammad, AIR 1999 SC 1104 ; and Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr., AIR 2010 SC 2077 ). 37. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910 , held: It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed. 38. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide: Union of India & Ors. v. Majji Jangammayya & Ors., AIR 1977 SC 757 ; P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR 1987 SC 1676 ; Paluru Ramkrishnaiah & Ors. v. Union of India & Anr., AIR 1990 SC 166 ; C. Rangaswamaiah & Ors. v. Karnataka Lokayukta & Ors., AIR 1998 SC 2496 ; and JAC of Airlines Pilots Association of India & Ors. v. The Director General of Civil Aviation & Ors., AIR 2011 SC 2220 ). 39. Similarly, a Constitution Bench of this Court, in Naga Peoples Movement of Human Rights v. Union of India., AIR 1998 SC 431 , held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions. 40. In Nagaraj Shivarao Karjagi v. Syndicate Bank, Head Office, Manipal & Anr., AIR 1991 SC 1507 , this Court has explained the scope of circulars issued by the Ministry observing that it is binding on the officers of the department particularly the recommendations made by CVC. 41. In State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh & Ors., AIR 1989 SC 997 , this Court held that the order must be passed by the authority after due application of mind uninfluenced by and without surrendering to the dictates of an extraneous body or an authority. 42. Considering the case in totality, we are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules. 43. In view thereof, we | 0[ds]Subsequent thereto, the SRC considered the case and the competent authority passed the order of continuation of suspension order on 12.1.2012. The said order made it clear that it would not be feasible for the competent authority to pass a reasoned and speaking order as required in terms of the Office Memorandum dated 7.1.2004 for the reason that CBI reports had not been receivedwe are of the considered opinion that it was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the courtwe are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules. | 0 | 8,386 | 203 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
the Tribunal. (Emphasis added) 34. The aforesaid facts make it crystal clear that it is a clear cut case of legal malice. The aspect of the legal malice was considered by this Court in Kalabharati Advertising v. Hemant Vimalnath Narichania & Ors., AIR 2010 SC 3745 , observing: 25. The State is under obligation to act fairly without ill will or malice— in fact or in law. Legal malice or malice in law means something done without lawful excuse. It is an act done wrongfully and wilfully without reasonable or probable cause, and not necessarily an act done from ill feeling and spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for purposes foreign to those for which it is in law intended. It means conscious violation of the law to the prejudice of another, a depraved inclination on the part of the authority to disregard the rights of others, which intent is manifested by its injurious acts. 26. Passing an order for an unauthorised purpose constitutes malice in law. 35. The record of the case reveals that this Court has granted interim order dated 8.10.2012 staying the operation of the judgment and order dated 1.6.2012 but that would not absolve the appellants from passing an illegal, unwarranted and uncalled for order of renewal of suspension on 31.7.2012 and if that order was void, we are very much doubtful about the sanctity/validity of the orders passed on 21.1.2013 and 17.7.2013. It further creates doubt whether the appellants, who had acted such unreasonably or illegally, are entitled for any relief before this Court. The Tribunal and the High Court were right that the appellants had not followed the directions of the Tribunal issued on 16.12.2011 and the mandate of Departments O.M. dated 7.1.2004. There is no gainsaid in saying that the terms of the said O.M. were required to be observed. 36. It is a settled legal proposition that jurisdiction under Article 136 of the Constitution is basically one of conscience. The jurisdiction is plenary and residuary. Therefore, even if the matter has been admitted, there is no requirement of law that court must decide it on each and every issue. The court can revoke the leave as such jurisdiction is required to be exercised only in suitable cases and very sparingly. The law is to be tempered with equity and the court can pass any equitable order considering the facts of a case. In such a situation, conduct of a party is the most relevant factor and in a given case, the court may even refuse to exercise its discretion under Article 136 of the Constitution for the reason that it is not necessary to exercise such jurisdiction just because it is lawful to do so. (Vide: Pritam Singh v. The State, AIR 1950 SC 169 ; Taherakhatoon (D) by Lrs. v. Salambin Mohammad, AIR 1999 SC 1104 ; and Karam Kapahi & Ors. v. M/s. Lal Chand Public Charitable Trust & Anr., AIR 2010 SC 2077 ). 37. A Constitution Bench of this Court while dealing with a similar issue in respect of executive instructions in Sant Ram Sharma v. State of Rajasthan & Ors., AIR 1967 SC 1910 , held: It is true that the Government cannot amend or supersede statutory Rules by administrative instruction, but if the Rules are silent on any particular point, the Government can fill-up the gap and supplement the rule and issue instructions not inconsistent with the Rules already framed. 38. The law laid down above has consistently been followed and it is a settled proposition of law that an authority cannot issue orders/office memorandum/ executive instructions in contravention of the statutory Rules. However, instructions can be issued only to supplement the statutory rules but not to supplant it. Such instructions should be subservient to the statutory provisions. (Vide: Union of India & Ors. v. Majji Jangammayya & Ors., AIR 1977 SC 757 ; P.D. Aggarwal & Ors. v. State of U.P. & Ors., AIR 1987 SC 1676 ; Paluru Ramkrishnaiah & Ors. v. Union of India & Anr., AIR 1990 SC 166 ; C. Rangaswamaiah & Ors. v. Karnataka Lokayukta & Ors., AIR 1998 SC 2496 ; and JAC of Airlines Pilots Association of India & Ors. v. The Director General of Civil Aviation & Ors., AIR 2011 SC 2220 ). 39. Similarly, a Constitution Bench of this Court, in Naga Peoples Movement of Human Rights v. Union of India., AIR 1998 SC 431 , held that the executive instructions have binding force provided the same have been issued to fill up the gap between the statutory provisions and are not inconsistent with the said provisions. 40. In Nagaraj Shivarao Karjagi v. Syndicate Bank, Head Office, Manipal & Anr., AIR 1991 SC 1507 , this Court has explained the scope of circulars issued by the Ministry observing that it is binding on the officers of the department particularly the recommendations made by CVC. 41. In State of U.P. & Ors. v. Maharaja Dharmander Prasad Singh & Ors., AIR 1989 SC 997 , this Court held that the order must be passed by the authority after due application of mind uninfluenced by and without surrendering to the dictates of an extraneous body or an authority. 42. Considering the case in totality, we are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules. 43. In view thereof, we
### Response:
0
### Explanation:
Subsequent thereto, the SRC considered the case and the competent authority passed the order of continuation of suspension order on 12.1.2012. The said order made it clear that it would not be feasible for the competent authority to pass a reasoned and speaking order as required in terms of the Office Memorandum dated 7.1.2004 for the reason that CBI reports had not been receivedwe are of the considered opinion that it was not permissible for the appellants to consider the renewal of the suspension order or to pass a fresh order without challenging the order of the Tribunal dated 1.6.2012 and such an attitude tantamounts to contempt of court and arbitrariness as it is not permissible for the executive to scrutinize the order of the courtwe are of the view that the appellants have acted in contravention of the final order passed by the Tribunal dated 1.6.2012 and therefore, there was no occasion for the appellants for passing the order dated 31.7.2012 or any subsequent order. The orders passed by the appellants had been in contravention of not only of the order of the court but also to the office memorandum and statutory rules.
|
Commissioner of Sales Tax, Indore Vs. Mohammad Hussain Rahim Bux | of the First schedule. In some of the Articles, however, in spite of the aforesaid definition of a State given in Article 264 for the purposes of Part XII Part C States were expressly mentioned For instance Article 268 which relates to duties levied by the Union but collected and appropriated by the States provides inter alia that in case of any States specified in Part C of the First Schedule these duties shall be collected by the Government of India. Article 269 deals with duties and taxes of the nature mentioned therein which shall be levied and collected by the Government of India but shall be assigned to the States. Such duties and taxes could not form part of the Consolidated Fund of India except in so far as those proceeds represent proceeds attributable to States specified in Part C. Article 270 deals with taxes levied and collected by the Union and distributed between the Union and the States. The prescribed percentage of the aforesaid taxes shall not form part of the Consolidated Fund of India except in the case of proceeds attributable to States specified in Part C.7. Now there are several other Articles in Part XlI which precede and follow Article 286 about which even the counsel for the appellant could not confidently say that the word "State" used in these Articles would not take in Part C States as well. Such Articles are 275, 276, 277, 280, 282, 287 and 291. Thus the meaning of the word "State" in Article 286 will have to be ascertained from the context. It will be quite legitimate to not only look at the context but also the purpose and the object for which Article 286 was enacted.8. In the Bengal Immunity Company Ltd. v. The State of Bihar, (1955) 2 SCR 603 =(AIR 1955 SC 661 ) the entire background and the true reasons for the enactment of Article 286 have been discussed at pages 636 and 637. It has been observed that the imposition of multiple taxes on one and the same transaction of sale or purchase was certainly calculated to hamper and discourage free flow of trade within India regarded as one economic unit. By Article 286 the Constitution makers clamped on the legislative power several fetters. Broadly speaking, the fetters thus placed on the taxing power of the States are that no law a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place, (a) outside the State or (b) in the course of import or export or (c) except in so far as Parliament otherwise provides, in the course of inter-State trade or commerce and lastly (d) that no law made by the legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent .9. The High Court was fully justified in taking the view that if the framers of the Constitution thought it necessary to put restrictions on the legislative powers of the State for preventing impediment and discouragement to the free flow of trade within India regarded as one economic unit and for preventing commodities essential for the life of the community throughout India from being subjected to sales tax then there could be no ground whatsoever to differentiate Part C States from Part A or Part B State in the matter of restrictions put by Article 286 on the legislative power of the State. It must be remembered that it was contemplated and provided by the Constitution that Part C States could have their own legislatures and even an Act was passed, as previously mentioned in which detailed provisions were made regarding these matters. (The Government of Part C States Act, 1951). In this view of the matter a requirement can certainly be spelt out from the context of Article 286 that the word "State" employed therein should include Part C States. Several anomalies will result if it were to be held that Part C States were immune from the limitations and restrictions imposed by Article 286. The Explanation to Article 286 (1) would become ineffective. For instance, under the Explanation the State in which the goods have actually been delivered as a direct result of sale or purchase for purposes of consumption in that State would be competent to impose the sales tax. Now if the former State of Vindhya Pradesh could also collect sales tax on sales where the delivery was outside the State and was covered by the Explanation then there would be multiple taxation on one transaction, one by the State of Vindhya Pradesh and the other by the State in which the goods were delivered for consumption. Clause (2) of Article 286 as it stood at the material time before the Constitutional amendments made in 1956 provided that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-State trade or commerce except in so far as Parliament by law otherwise provided. Now, if Article 286 was not applicable to Part C States then the sales or purchases taking place in the course of inter-State trade and commerce could have been taxed by the erstwhile State of Vindhya Pradesh.It is difficult to understand how the Constitution makers could have ever countenanced such an anomalous situation which would have even brought in discrimination between Part C States and the other States. Whatever way the matter is looked at, it is difficult to escape from the conclusion that the context of Article 286 required that the word "State" as used therein should include Part C States. | 0[ds]It may be mentioned that the High Court had agreed with the tribunal that the said Article was applicable. If that view is affirmed it is not disputed that both the appeals will have to beneed not, in this case, state the views which were expressed in that special reference. Parliament, however, after the opinions expressed by this Court passed the Government of Part C States Act, 1951 in exercise of its powers under Article 240 (1). By this Act Parliament made provision for the legislature, Council of Ministers or Advisers for Part C States. This Act also contained provisions relating to Consolidated Fund for a State which was included in Part C of the Firstspeaking, the fetters thus placed on the taxing power of the States are that no law a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place, (a) outside the State or (b) in the course of import or export or (c) except in so far as Parliament otherwise provides, in the course oftrade or commerce and lastly (d) that no law made by the legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent .9. The High Court was fully justified in taking the view that if the framers of the Constitution thought it necessary to put restrictions on the legislative powers of the State for preventing impediment and discouragement to the free flow of trade within India regarded as one economic unit and for preventing commodities essential for the life of the community throughout India from being subjected to sales tax then there could be no ground whatsoever to differentiate Part C States from Part A or Part B State in the matter of restrictions put by Article 286 on the legislative power of the State. It must be remembered that it was contemplated and provided by the Constitution that Part C States could have their own legislatures and even an Act was passed, as previously mentioned in which detailed provisions were made regarding these matters. (The Government of Part C States Act, 1951). In this view of the matter a requirement can certainly be spelt out from the context of Article 286 that the word "State" employed therein should include Part C States. Several anomalies will result if it were to be held that Part C States were immune from the limitations and restrictions imposed by Article 286. The Explanation to Article 286 (1) would become ineffective. For instance, under the Explanation the State in which the goods have actually been delivered as a direct result of sale or purchase for purposes of consumption in that State would be competent to impose the sales tax. Now if the former State of Vindhya Pradesh could also collect sales tax on sales where the delivery was outside the State and was covered by the Explanation then there would be multiple taxation on one transaction, one by the State of Vindhya Pradesh and the other by the State in which the goods were delivered for consumption. Clause (2) of Article 286 as it stood at the material time before the Constitutional amendments made in 1956 provided that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase took place in the course oftrade or commerce except in so far as Parliament by law otherwise provided. Now, if Article 286 was not applicable to Part C States then the sales or purchases taking place in the course oftrade and commerce could have been taxed by the erstwhile State of Vindhya Pradesh.It is difficult to understand how the Constitution makers could have ever countenanced such an anomalous situation which would have even brought in discrimination between Part C States and the other States. Whatever way the matter is looked at, it is difficult to escape from the conclusion that the context of Article 286 required that the word "State" as used therein should include Part C States. | 0 | 2,683 | 783 | ### 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:
of the First schedule. In some of the Articles, however, in spite of the aforesaid definition of a State given in Article 264 for the purposes of Part XII Part C States were expressly mentioned For instance Article 268 which relates to duties levied by the Union but collected and appropriated by the States provides inter alia that in case of any States specified in Part C of the First Schedule these duties shall be collected by the Government of India. Article 269 deals with duties and taxes of the nature mentioned therein which shall be levied and collected by the Government of India but shall be assigned to the States. Such duties and taxes could not form part of the Consolidated Fund of India except in so far as those proceeds represent proceeds attributable to States specified in Part C. Article 270 deals with taxes levied and collected by the Union and distributed between the Union and the States. The prescribed percentage of the aforesaid taxes shall not form part of the Consolidated Fund of India except in the case of proceeds attributable to States specified in Part C.7. Now there are several other Articles in Part XlI which precede and follow Article 286 about which even the counsel for the appellant could not confidently say that the word "State" used in these Articles would not take in Part C States as well. Such Articles are 275, 276, 277, 280, 282, 287 and 291. Thus the meaning of the word "State" in Article 286 will have to be ascertained from the context. It will be quite legitimate to not only look at the context but also the purpose and the object for which Article 286 was enacted.8. In the Bengal Immunity Company Ltd. v. The State of Bihar, (1955) 2 SCR 603 =(AIR 1955 SC 661 ) the entire background and the true reasons for the enactment of Article 286 have been discussed at pages 636 and 637. It has been observed that the imposition of multiple taxes on one and the same transaction of sale or purchase was certainly calculated to hamper and discourage free flow of trade within India regarded as one economic unit. By Article 286 the Constitution makers clamped on the legislative power several fetters. Broadly speaking, the fetters thus placed on the taxing power of the States are that no law a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place, (a) outside the State or (b) in the course of import or export or (c) except in so far as Parliament otherwise provides, in the course of inter-State trade or commerce and lastly (d) that no law made by the legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent .9. The High Court was fully justified in taking the view that if the framers of the Constitution thought it necessary to put restrictions on the legislative powers of the State for preventing impediment and discouragement to the free flow of trade within India regarded as one economic unit and for preventing commodities essential for the life of the community throughout India from being subjected to sales tax then there could be no ground whatsoever to differentiate Part C States from Part A or Part B State in the matter of restrictions put by Article 286 on the legislative power of the State. It must be remembered that it was contemplated and provided by the Constitution that Part C States could have their own legislatures and even an Act was passed, as previously mentioned in which detailed provisions were made regarding these matters. (The Government of Part C States Act, 1951). In this view of the matter a requirement can certainly be spelt out from the context of Article 286 that the word "State" employed therein should include Part C States. Several anomalies will result if it were to be held that Part C States were immune from the limitations and restrictions imposed by Article 286. The Explanation to Article 286 (1) would become ineffective. For instance, under the Explanation the State in which the goods have actually been delivered as a direct result of sale or purchase for purposes of consumption in that State would be competent to impose the sales tax. Now if the former State of Vindhya Pradesh could also collect sales tax on sales where the delivery was outside the State and was covered by the Explanation then there would be multiple taxation on one transaction, one by the State of Vindhya Pradesh and the other by the State in which the goods were delivered for consumption. Clause (2) of Article 286 as it stood at the material time before the Constitutional amendments made in 1956 provided that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase took place in the course of inter-State trade or commerce except in so far as Parliament by law otherwise provided. Now, if Article 286 was not applicable to Part C States then the sales or purchases taking place in the course of inter-State trade and commerce could have been taxed by the erstwhile State of Vindhya Pradesh.It is difficult to understand how the Constitution makers could have ever countenanced such an anomalous situation which would have even brought in discrimination between Part C States and the other States. Whatever way the matter is looked at, it is difficult to escape from the conclusion that the context of Article 286 required that the word "State" as used therein should include Part C States.
### Response:
0
### Explanation:
It may be mentioned that the High Court had agreed with the tribunal that the said Article was applicable. If that view is affirmed it is not disputed that both the appeals will have to beneed not, in this case, state the views which were expressed in that special reference. Parliament, however, after the opinions expressed by this Court passed the Government of Part C States Act, 1951 in exercise of its powers under Article 240 (1). By this Act Parliament made provision for the legislature, Council of Ministers or Advisers for Part C States. This Act also contained provisions relating to Consolidated Fund for a State which was included in Part C of the Firstspeaking, the fetters thus placed on the taxing power of the States are that no law a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place, (a) outside the State or (b) in the course of import or export or (c) except in so far as Parliament otherwise provides, in the course oftrade or commerce and lastly (d) that no law made by the legislature of a State imposing or authorising the imposition of a tax on the sale or purchase of any such goods as have been declared by Parliament by law to be essential for the life of the community shall have effect unless it has been reserved for the consideration of the President and has received his assent .9. The High Court was fully justified in taking the view that if the framers of the Constitution thought it necessary to put restrictions on the legislative powers of the State for preventing impediment and discouragement to the free flow of trade within India regarded as one economic unit and for preventing commodities essential for the life of the community throughout India from being subjected to sales tax then there could be no ground whatsoever to differentiate Part C States from Part A or Part B State in the matter of restrictions put by Article 286 on the legislative power of the State. It must be remembered that it was contemplated and provided by the Constitution that Part C States could have their own legislatures and even an Act was passed, as previously mentioned in which detailed provisions were made regarding these matters. (The Government of Part C States Act, 1951). In this view of the matter a requirement can certainly be spelt out from the context of Article 286 that the word "State" employed therein should include Part C States. Several anomalies will result if it were to be held that Part C States were immune from the limitations and restrictions imposed by Article 286. The Explanation to Article 286 (1) would become ineffective. For instance, under the Explanation the State in which the goods have actually been delivered as a direct result of sale or purchase for purposes of consumption in that State would be competent to impose the sales tax. Now if the former State of Vindhya Pradesh could also collect sales tax on sales where the delivery was outside the State and was covered by the Explanation then there would be multiple taxation on one transaction, one by the State of Vindhya Pradesh and the other by the State in which the goods were delivered for consumption. Clause (2) of Article 286 as it stood at the material time before the Constitutional amendments made in 1956 provided that no law of a State shall impose or authorise the imposition of a tax on the sale or purchase of any goods where such sale or purchase took place in the course oftrade or commerce except in so far as Parliament by law otherwise provided. Now, if Article 286 was not applicable to Part C States then the sales or purchases taking place in the course oftrade and commerce could have been taxed by the erstwhile State of Vindhya Pradesh.It is difficult to understand how the Constitution makers could have ever countenanced such an anomalous situation which would have even brought in discrimination between Part C States and the other States. Whatever way the matter is looked at, it is difficult to escape from the conclusion that the context of Article 286 required that the word "State" as used therein should include Part C States.
|
RAVI SETIA Vs. MADAN LAL | the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations. 11. In V.S. Palanichamy Chettiar Firm vs. C. Alagappan, (1999) 4 SCC 702 , it was observed as follows : 17. The agreement of sale was entered into as far back on 16-2-1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court……Merely because a suit is filed within the prescribed period of limitation does not absolve the vendee-plaintiff from showing as to whether he was ready and willing to perform his part of the agreement and if there was non-performance, was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale….. It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree……That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration….. Equity demands that discretion be not exercised in favour of the respondent decree- holders and no extension of time be granted to them to comply with the decree. 12. In our opinion, had the plaintiff deposited the amount after expiry of the time but during the pendency of the appeal, as held in Ramankutty Guptan vs. Avara, (1994) 2 SCC 642 , entirely different considerations may have arisen. The judgement in any event is based on its own peculiar facts and circumstances. 13. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and Another, (2005) 6 SCC 243 , it has been observed as follows : 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-defendants were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-defendants must be judged having regard to the entirety of the pleadings as also the evidence brought on records. 14. According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that the defendants nos.1 and 2 subsequently sold the land on 16.01.1991 to defendants nos.4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the plaintiff that he was ready and willing to perform his part of the obligations under the contract. 15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law. In Dilbagrai Punjabi vs. Sharad Chandra, 1988 Supp SCC 710, it was observed as follows: 5…..The High Court was right in pointing out that the courts below had seriously erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding…. 16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent. | 0[ds]5. We have considered the submissions on behalf of the parties and have also been taken through the orders under appeal. Defendants nos. 1 to 3 owned 61 karnals 17 marlas of lands in Village Gumjal, Tehsil Abohar, District Ferozpur. Defendant no.3 having refused to sign the agreement for sale dated 10.11.1989, the plaintiff instituted a suit for enforcement of the agreement with regard to the 2/3 rd share of defendants 1 and 2. The sale deed was to be executed on or before 30.04.1990. The Trial Court and the First Appellate Court arrived at the finding of readiness and willingness on part of the plaintiff solely on basis of a certificate produced by them from the Sub-Registrar confirming their presence before him on 30.04.1990 for execution. Apart from the same, no further evidence was led by the plaintiff to demonstrate readiness and willingness including the continuous capacity for discharge of the balance consideration. The plaintiff in its application before the Sub- Registrar stated that he had required defendants 1 and 2 to be present for registration on 25.06.1990. No evidence whatsoever has been led by the plaintiff in support of the same. We are of the considered opinion that in the circumstances the certificate from the office of the Sub-Registrar cannot be construed as conclusive evidence to non-suit defendants 1 and 2. The findings to that effect are therefore held to be unsustainable10. The grant of relief for specific performance under Section 16 (1)(c) of the Act is a discretionary and equitable relief. Under Section 16 (1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations14. According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that the defendants nos.1 and 2 subsequently sold the land on 16.01.1991 to defendants nos.4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the plaintiff that he was ready and willing to perform his part of the obligations under the contract15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law.16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent9. There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity on part of the plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal12. In our opinion, had the plaintiff deposited the amount after expiry of the time but during the pendency of the appeal, as held in Ramankutty Guptan vs. Avara, (1994) 2 SCC 642 , entirely different considerations may have arisen. The judgement in any event is based on its own peculiar facts and circumstances6. Defendant nos. 1 and 2 by registered notices dated 28.05.1990 and 12.06.1990 required the plaintiff to get the sale deed executed by 25.06.1990. The plaintiff does not dispute that the communication was properly addressed and sent through registered acknowledgement due. If it was returned back with the endorsement that the plaintiff was not available at his home, defendants 1 and 2 were not required to do anything further. If the plaintiff was of the opinion that the endorsement was wrong, it was for him to have contended so and led necessary evidence in this regard. The Trial Court rightly did not disbelieve defendants 1 and 2, but without returning any finding in that regard preferred to rely on the unsubstantiated claim of the plaintiff of having been present before the Sub-Registrar on 30.04.1990. The said finding is also held to be unsustainable. | 0 | 2,688 | 1,253 | ### 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:
the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations. 11. In V.S. Palanichamy Chettiar Firm vs. C. Alagappan, (1999) 4 SCC 702 , it was observed as follows : 17. The agreement of sale was entered into as far back on 16-2-1980, about 19 years ago. No explanation is forthcoming as to why the balance amount of consideration could not be deposited within the time granted by the Court……Merely because a suit is filed within the prescribed period of limitation does not absolve the vendee-plaintiff from showing as to whether he was ready and willing to perform his part of the agreement and if there was non-performance, was that on account of any obstacle put by the vendor or otherwise. Provisions to grant specific performance of an agreement are quite stringent. Equitable considerations come into play. The court has to see all the attendant circumstances including if the vendee has conducted himself in a reasonable manner under the contract of sale….. It is not the case of the respondent decree-holders that on account of any fault on the part of the vendor judgment-debtor, the amount could not be deposited as per the decree……That apart, no explanation whatsoever is coming from the respondent decree-holders as to why they did not pay the balance amount of consideration….. Equity demands that discretion be not exercised in favour of the respondent decree- holders and no extension of time be granted to them to comply with the decree. 12. In our opinion, had the plaintiff deposited the amount after expiry of the time but during the pendency of the appeal, as held in Ramankutty Guptan vs. Avara, (1994) 2 SCC 642 , entirely different considerations may have arisen. The judgement in any event is based on its own peculiar facts and circumstances. 13. In Umabai and Another vs. Nilkanth Dhondiba Chavan (Dead) by Lrs. and Another, (2005) 6 SCC 243 , it has been observed as follows : 30. It is now well settled that the conduct of the parties, with a view to arrive at a finding as to whether the plaintiff-defendants were all along and still are ready and willing to perform their part of contract as is mandatorily required under Section 16(c) of the Specific Relief Act must be determined having regard to the entire attending circumstances. A bare averment in the plaint or a statement made in the examination-in-chief would not suffice. The conduct of the plaintiff-defendants must be judged having regard to the entirety of the pleadings as also the evidence brought on records. 14. According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that the defendants nos.1 and 2 subsequently sold the land on 16.01.1991 to defendants nos.4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the plaintiff that he was ready and willing to perform his part of the obligations under the contract. 15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law. In Dilbagrai Punjabi vs. Sharad Chandra, 1988 Supp SCC 710, it was observed as follows: 5…..The High Court was right in pointing out that the courts below had seriously erred in not considering the entire evidence on the record including the aforesaid documents. It is true that the High Court while hearing the appeal under Section 100 of the Code of Civil Procedure has no jurisdiction to reappraise the evidence and reverse the conclusion reached by the first appellate court, but at the same time its power to interfere with the finding cannot be denied if when the lower appellate court decides an issue of fact a substantial question of law arises. The court is under a duty to examine the entire relevant evidence on record and if it refuses to consider important evidence having direct bearing on the disputed issue and the error which arises is of a magnitude that it gives birth to a substantial question of law, the High Court is fully authorised to set aside the finding…. 16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent.
### Response:
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### Explanation:
the Sub- Registrar stated that he had required defendants 1 and 2 to be present for registration on 25.06.1990. No evidence whatsoever has been led by the plaintiff in support of the same. We are of the considered opinion that in the circumstances the certificate from the office of the Sub-Registrar cannot be construed as conclusive evidence to non-suit defendants 1 and 2. The findings to that effect are therefore held to be unsustainable10. The grant of relief for specific performance under Section 16 (1)(c) of the Act is a discretionary and equitable relief. Under Section 16 (1)(c), the plaintiff has to demonstrate readiness and willingness throughout to perform his obligations under the contract. The plea that the amount would lie in the bank without interest is unfounded and contrary to normal banking practice. To our mind, this is sufficient evidence of the incapacity or lack of readiness and willingness on part of the plaintiff to perform his obligations. Undoubtedly, the time for deposit could be extended under Section 28 of the Act. But the mere extension of time for deposit does not absolve the plaintiff of his obligation to demonstrate readiness and willingness coupled with special circumstances beyond his control to seek such extension. The plaintiff did not aver in the application that he was ready and willing to perform his obligations and was prevented from any special circumstances from doing so. The pendency of an appeal by the defendant did not preclude the plaintiff from depositing the amount in proof of his readiness and willingness. Readiness has been interpreted as capacity for discharge of obligations with regard to payment. The High Court has rightly observed that there was no stay by the Appellate Court of the decree under appeal to justify non-deposit during the pendency of the appeal. The grant of extension of time cannot ipso facto be construed as otherwise demonstrating readiness and willingness on part of the plaintiff. The plaintiff was required to plead sufficient, substantial and cogent grounds to seek extension of time for deposit because otherwise it becomes a question of his conduct along with all other attendant surrounding circumstances in the facts of the case. We therefore find no infirmity in the order of the High Court concluding that the plaintiff in the facts and circumstances was not ready and willing to perform his obligations14. According to normal human prudence, land price escalates over time. Unless it be a situation of a distress sale, no land owner will sell his land for a lesser price than what may have been recorded in an agreement for sale. The fact that the defendants nos.1 and 2 subsequently sold the land on 16.01.1991 to defendants nos.4 to 7 at a lesser price, due to personal necessity, also mitigates against the plea of the plaintiff that he was ready and willing to perform his part of the obligations under the contract15. There can be no quarrel with the well settled proposition of law that in a second appeal, the High Court ought not to enter into reappreciation of evidence to arrive at new findings, except on pure questions of law. But if the findings are perverse, based on complete misappreciation or erroneous consideration of evidence, and the failure to consider relevant evidence, it becomes a question of law.16. In view of the discussion, we arrive at the conclusion that the plaintiff failed to prove readiness and willingness to perform its obligations under the agreement for sale. We are of the considered opinion that there is no merit in the present appeal. However, in the peculiar facts and circumstances of the case, we are of the considered opinion that the respondent is not entitled to retain the earnest money and it shall be refunded to the appellant without interest within a period of one month failing which it shall carry interest at the rate of 7 per cent9. There can be no straight jacket formula with regard to readiness and willingness. It will have to be construed in the facts and circumstances of each case in the light of all attending facts and circumstances. We are of the considered opinion, that in the facts and circumstances of the present case, the failure of the plaintiff to offer any explanation why the balance consideration was not deposited within the time granted, the filing of the application for extension of time after expiry of the prescribed period coupled with the frivolousness of the grounds taken in the application for extension that the money would lie in the bank without earning interest, are all but evidence of incapacity on part of the plaintiff to perform his obligations under the agreement and reflective of lack of readiness and willingness. He preferred to wait and abide by the gamble of a favourable decision in the first appeal12. In our opinion, had the plaintiff deposited the amount after expiry of the time but during the pendency of the appeal, as held in Ramankutty Guptan vs. Avara, (1994) 2 SCC 642 , entirely different considerations may have arisen. The judgement in any event is based on its own peculiar facts and circumstances6. Defendant nos. 1 and 2 by registered notices dated 28.05.1990 and 12.06.1990 required the plaintiff to get the sale deed executed by 25.06.1990. The plaintiff does not dispute that the communication was properly addressed and sent through registered acknowledgement due. If it was returned back with the endorsement that the plaintiff was not available at his home, defendants 1 and 2 were not required to do anything further. If the plaintiff was of the opinion that the endorsement was wrong, it was for him to have contended so and led necessary evidence in this regard. The Trial Court rightly did not disbelieve defendants 1 and 2, but without returning any finding in that regard preferred to rely on the unsubstantiated claim of the plaintiff of having been present before the Sub-Registrar on 30.04.1990. The said finding is also held to be unsustainable.
|
Commissioner Of Income-Tax, New Delhi Vs. Anant Rao B. Kamat | tax payable. Para 6-A of the Concession Order-Income, profits and gains chargeable to tax in the assessment year 1952-53, 1953-54 and 1954-55. The income, profits and gains of any previous year which is a previous year for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955, shall be charged to tax at the Indian rates tax; provided that from the tax so computed, there shall be allowed in each year, rebate at this percentage thereof specified there under: In respect of so much of the income, profits and gains as accrue or arise- (a) In the States of Saurashtra, Madhya Bharat or Rajasthan, to any assessee, at the rate of 40 percent, 20 percent and 10 percent, respectively for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955...... .... .. ..". 4. The scheme underlying S. 16(2) and S. 18(5) seems to be this. Under S. 16(2) the dividends are grossed up and under S. 18(5) any sum by which a dividend is increased under S. 16(2) is treated as payment of income-tax on behalf of the share-holder. In this setting, let us examine what is the true construction of S. 16(2) of the Act. It is common ground that "grossing up has to be effected in this case. The real point of controversy between the parties is regarding the rate at which it is to be done. The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd. v. Comm. of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), urged that the same meaning should be attributed to the expression "rate applicable to the total income of the company" in S. 16(2) as was attributed by this Court to the same expression occurring in sub-clause (b) of Cl. (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951. We are unable to accept this argument. It is true that the same expression occurs in S. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words without taking into account any rebate allowed or additional income-tax charged occur in S. 16(2) and not in the said sub-clause, and effect must be given to these words. If we ignore these words, we would be rewriting S. 16(2).It will be noticed that S. 16(2) applies the rate of the year in which the dividend is paid, etc., and not of the year when the profits were made by the company. The legislature has devised a mechanical test which has to be applied regardless of the hardship or the benefit which may accrue to an assessee. Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company has to be, as directed by S. 16(2), taken into account. 5. This takes us next to the point that benefit given by the Concession Order is not a rebate at all. We cannot accept this contention. The Concession Order itself uses the word rebate in paras 5, 6 and 6-A. In deed, though it may be possible to urge something while dealing with para 6, no argument is possible regarding para 6-A, for it expressly says that there shall be allowed in each year rebate at the percentage there of specified hereunder. The learned counsel for the appellant laid great stress on the language of para 6 of the Concession Order. He said that clause (i) directed the computation of tax and clause (iii) was equally directing computation of tax, and that in this context the word rebate has been loosely used. We are unable to say that the word rebate has been loosely used. In para 6-A the meaning is clear and the word rebate must have the same meaning in both paras. Further, but for the provision of the Concession Order, the said companies would have been taxed at the rates prescribed by the relevant Finance Act. The Concession order remits what would otherwise be the proper tax leviable under the Finance Act, read with Indian Income Tax Act. The word rebate is an apt word to use in respect of a remission. 6. That a rebate as such can be directed to be allowed under S. 60-A of the Act seems clear to us. The words exemption or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order. 7. During the course of the hearing of the connected Civil Appeal in Maganlal Sankalchand v. Commr. of Income Tax New Delhi, Civil Appeal No. 703 of 1963, D/- 8-5-1964 (SC), the learned counsel for the Commissioner of Income Tax raised two additional arguments. First, he urged that the word rebate in S. 16(2) only related to rebate granted under the Indian Finance Act and not any rebate granted under the Concession Order. He further referred us to R. 14 of Indian Income Tax Rules, which prescribes the certificate to be furnished by the principal officer of a company under S. 20 of the Act. The relevant portion of the certificates is as follows:"1. We certify:- (A) (1) that the Company estimates that out of the said period; (a) ..............per cent, is chargeable at full Indian rate: (b) .... ....... ..per cent, is chargeable at the reduced rate of ....(Name of Part B State); and ..... ...." 8. Regarding his first contention, we are unable to limit the meaning of the word rebate to rebate granted under the Indian Finance Act. The word rebate is not qualified and is wide enough to include any rebate which may be granted by other statutory orders. The form of the certificate referred to us which mentions reduction of rate cannot change the meaning of the word rebate. | 0[ds]4. The scheme underlying S. 16(2) and S. 18(5) seems to be this. Under S. 16(2) the dividends are grossed up and under S. 18(5) any sum by which a dividend is increased under S. 16(2) is treated as payment of income-tax on behalf of the share-holder. In this setting, let us examine what is the true construction of S. 16(2) of the Act. It is common ground that "grossing up has to be effected in this case. The real point of controversy between the parties is regarding the rate at which it is to be done. The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd. v. Comm. of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), urged that the same meaning should be attributed to the expression "rate applicable to the total income of the company" in S. 16(2) as was attributed by this Court to the same expression occurring in sub-clause (b) of Cl. (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951. We are unable to accept this argument. It is true that the same expression occurs in S. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words without taking into account any rebate allowed or additional income-tax charged occur in S. 16(2) and not in the said sub-clause, and effect must be given to these words. If we ignore these words, we would be rewriting S. 16(2).It will be noticed that S. 16(2) applies the rate of the year in which the dividend is paid, etc., and not of the year when the profits were made by the company. The legislature has devised a mechanical test which has to be applied regardless of the hardship or the benefit which may accrue to an assessee. Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company has to be, as directed by S. 16(2), taken into accountWe are unable to say that the word rebate has been loosely used. In para 6-A the meaning is clear and the word rebate must have the same meaning in both paras. Further, but for the provision of the Concession Order, the said companies would have been taxed at the rates prescribed by the relevant Finance Act. The Concession order remits what would otherwise be the proper tax leviable under the Finance Act, read with Indian Income Tax Act. The word rebate is an apt word to use in respect of a remission6. That a rebate as such can be directed to be allowed under S. 60-A of the Act seems clear to us. The words exemption or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order8. Regarding his first contention, we are unable to limit the meaning of the word rebate to rebate granted under the Indian Finance Act. The word rebate is not qualified and is wide enough to include any rebate which may be granted by other statutory orders. The form of the certificate referred to us which mentions reduction of rate cannot change the meaning of the word rebate. | 0 | 2,967 | 656 | ### 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:
tax payable. Para 6-A of the Concession Order-Income, profits and gains chargeable to tax in the assessment year 1952-53, 1953-54 and 1954-55. The income, profits and gains of any previous year which is a previous year for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955, shall be charged to tax at the Indian rates tax; provided that from the tax so computed, there shall be allowed in each year, rebate at this percentage thereof specified there under: In respect of so much of the income, profits and gains as accrue or arise- (a) In the States of Saurashtra, Madhya Bharat or Rajasthan, to any assessee, at the rate of 40 percent, 20 percent and 10 percent, respectively for the assessment for the year ending on the 31st day of March, 1953, 1954 and 1955...... .... .. ..". 4. The scheme underlying S. 16(2) and S. 18(5) seems to be this. Under S. 16(2) the dividends are grossed up and under S. 18(5) any sum by which a dividend is increased under S. 16(2) is treated as payment of income-tax on behalf of the share-holder. In this setting, let us examine what is the true construction of S. 16(2) of the Act. It is common ground that "grossing up has to be effected in this case. The real point of controversy between the parties is regarding the rate at which it is to be done. The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd. v. Comm. of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), urged that the same meaning should be attributed to the expression "rate applicable to the total income of the company" in S. 16(2) as was attributed by this Court to the same expression occurring in sub-clause (b) of Cl. (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951. We are unable to accept this argument. It is true that the same expression occurs in S. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words without taking into account any rebate allowed or additional income-tax charged occur in S. 16(2) and not in the said sub-clause, and effect must be given to these words. If we ignore these words, we would be rewriting S. 16(2).It will be noticed that S. 16(2) applies the rate of the year in which the dividend is paid, etc., and not of the year when the profits were made by the company. The legislature has devised a mechanical test which has to be applied regardless of the hardship or the benefit which may accrue to an assessee. Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company has to be, as directed by S. 16(2), taken into account. 5. This takes us next to the point that benefit given by the Concession Order is not a rebate at all. We cannot accept this contention. The Concession Order itself uses the word rebate in paras 5, 6 and 6-A. In deed, though it may be possible to urge something while dealing with para 6, no argument is possible regarding para 6-A, for it expressly says that there shall be allowed in each year rebate at the percentage there of specified hereunder. The learned counsel for the appellant laid great stress on the language of para 6 of the Concession Order. He said that clause (i) directed the computation of tax and clause (iii) was equally directing computation of tax, and that in this context the word rebate has been loosely used. We are unable to say that the word rebate has been loosely used. In para 6-A the meaning is clear and the word rebate must have the same meaning in both paras. Further, but for the provision of the Concession Order, the said companies would have been taxed at the rates prescribed by the relevant Finance Act. The Concession order remits what would otherwise be the proper tax leviable under the Finance Act, read with Indian Income Tax Act. The word rebate is an apt word to use in respect of a remission. 6. That a rebate as such can be directed to be allowed under S. 60-A of the Act seems clear to us. The words exemption or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order. 7. During the course of the hearing of the connected Civil Appeal in Maganlal Sankalchand v. Commr. of Income Tax New Delhi, Civil Appeal No. 703 of 1963, D/- 8-5-1964 (SC), the learned counsel for the Commissioner of Income Tax raised two additional arguments. First, he urged that the word rebate in S. 16(2) only related to rebate granted under the Indian Finance Act and not any rebate granted under the Concession Order. He further referred us to R. 14 of Indian Income Tax Rules, which prescribes the certificate to be furnished by the principal officer of a company under S. 20 of the Act. The relevant portion of the certificates is as follows:"1. We certify:- (A) (1) that the Company estimates that out of the said period; (a) ..............per cent, is chargeable at full Indian rate: (b) .... ....... ..per cent, is chargeable at the reduced rate of ....(Name of Part B State); and ..... ...." 8. Regarding his first contention, we are unable to limit the meaning of the word rebate to rebate granted under the Indian Finance Act. The word rebate is not qualified and is wide enough to include any rebate which may be granted by other statutory orders. The form of the certificate referred to us which mentions reduction of rate cannot change the meaning of the word rebate.
### Response:
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### Explanation:
4. The scheme underlying S. 16(2) and S. 18(5) seems to be this. Under S. 16(2) the dividends are grossed up and under S. 18(5) any sum by which a dividend is increased under S. 16(2) is treated as payment of income-tax on behalf of the share-holder. In this setting, let us examine what is the true construction of S. 16(2) of the Act. It is common ground that "grossing up has to be effected in this case. The real point of controversy between the parties is regarding the rate at which it is to be done. The learned counsel for the appellant relying on the decision of this Court in Rajputana Agencies Ltd. v. Comm. of Income-tax, (1959) 35 ITR 168 : (AIR 1959 SC 265 ), urged that the same meaning should be attributed to the expression "rate applicable to the total income of the company" in S. 16(2) as was attributed by this Court to the same expression occurring in sub-clause (b) of Cl. (ii) to the second explanation to proviso to paragraph B of Part I of the First Schedule to the Indian Finance Act, 1951. We are unable to accept this argument. It is true that the same expression occurs in S. 16(2) and the sub-clause above referred to, but as pointed out by the High Court, the words without taking into account any rebate allowed or additional income-tax charged occur in S. 16(2) and not in the said sub-clause, and effect must be given to these words. If we ignore these words, we would be rewriting S. 16(2).It will be noticed that S. 16(2) applies the rate of the year in which the dividend is paid, etc., and not of the year when the profits were made by the company. The legislature has devised a mechanical test which has to be applied regardless of the hardship or the benefit which may accrue to an assessee. Therefore, we agree with the High Court that though the rate applicable is the rate which is actually applied, rebate if any allowed to a company has to be, as directed by S. 16(2), taken into accountWe are unable to say that the word rebate has been loosely used. In para 6-A the meaning is clear and the word rebate must have the same meaning in both paras. Further, but for the provision of the Concession Order, the said companies would have been taxed at the rates prescribed by the relevant Finance Act. The Concession order remits what would otherwise be the proper tax leviable under the Finance Act, read with Indian Income Tax Act. The word rebate is an apt word to use in respect of a remission6. That a rebate as such can be directed to be allowed under S. 60-A of the Act seems clear to us. The words exemption or other modification are wide enough to enable the Central Government to give rebate such as has been allowed under the Concession Order8. Regarding his first contention, we are unable to limit the meaning of the word rebate to rebate granted under the Indian Finance Act. The word rebate is not qualified and is wide enough to include any rebate which may be granted by other statutory orders. The form of the certificate referred to us which mentions reduction of rate cannot change the meaning of the word rebate.
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State of Bihar and Another Etc Vs. Khas Karanpura Collieries Limited Etc | from a close scrutiny of section 30A (supra) of the 1957 Act, the provisions whereof may usefully be recalled at this stage. Before examining, however, . section 30A, it would be profitable to advert to section 9 (supra) of the Act. This section, it would be seen consists of three parts. Sub-section (1) casts a liability on the holder of a mining lease granted before June 1, 1958--the date of the commencement of the Act--to pay royalty in respect of any mineral removed by him from the leased area after that date at the rate for the time being specified in the Second Schedule, notwithstanding anything contained in the instrument of lease or in any law in force on the aforesaid date of the commencement of the Act . Sub-section (2) makes also the holder of a mining lease granted on or after June 1, 1958 liable to pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being spec ified in the Second Schedule. Sub-section (3) empowers the Central Government to amend the Second Schedule and enhance or reduce the rate of royalty in re- spect of any mineral by issue of a notification subject to the restriction contained in the proviso to this sub-sec- tion. Section 30A which, as is evident from its opening words, has an overriding effect on the other provisions of the Act affords a temporary protection fro m applicability of section 9(1) and section 16(1) of the Act not only to the leases granted before October 25, 1949, but also to the statutory leases which came into existence as a result of the operation of s. 10(1) of the Bihar Land Reforms Act and replaced the former category of leases subsisting immediately before the date of vesting in the State of the estates or tenures on the publication of the notif ications under sections 3 and 3A of the Bihar Land Reforms Act. This conclusion irresistibly flows from the words "or in relation to" occurring in section 30A of the 1957 Act after the words "shall not apply to" and before the words "mining leases granted before the 25th day of October 1949" The aforesaid words which are of great significance of enlarge the scope of section 30A and bring within the umbrella of its protection the mining leases granted before October 25, 1949 as also the statutory leases which sprang up in their place by virtue of the legal fiction contained in Section 10(1) of the Bihar Land Reforms Act on the re: sting in the State of the estates or tenures. As expressly ordained by sub-sections (1) &(2) of section 10 of the Bihar Land Reforms Act, not only the holder of a statutory lease had to be the same as the holder of a subsisting lease for the remainder of the term of that lease but the terms and conditions of the statutory lease had also mutatis mutandis to be the same as the terms and conditions of the subsisting lease i.e. the original lease except to the extent mentioned in sub-section (2). Thus the statutory lease being inextricably linked up with the aforesaid subsisting lease which it replaced as a result of the aforesaid provisions of the Act came within the purview of section 30A of the 1957 Act. The interpretation sought to be placed by the appellants on the phraseology of section 30A of the 1957 Act cannot be accepted as;. it would unduly re strict and limit the scope of that section and defeat the object which it was intended to effectuate viz. to mitigate the rigour of liability for payment of royalty under section 9 of the 1957 Act at the rate specified in the Second Schedule in respect of the coal removed from the leased area after the commencement of the Act. If as contended by the appellants, the protection envisaged by se ction 30A is restricted to leases granted before October 25, 1949, sec- tion 30A would be rendered nugatory because on the coming into being of the statutory leases as a result of section 10(1) of the Bihar Land Re forms Act, there would hardly be left any mining lease to which section 30A of the 1957 Act would be applicable. Thus there can be no room for doubt that the Legislature intended that section 30A of the 1957 Act should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to the following statement of objects and reasons given in the Bill which sought to introduce section 30A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of section 30A and the extent of the protection afforded by it:--" .... It is considered that these changes will have numerous undesirable consequences. The areas covered by these mining leases are principally in West Bengal and Bihar and they account for as much as 80 per cent of the total coal production in the country. The royalties paid on this coal vary over a wide range but are generally much below the rate per ton prescribed in the Second Schedule. A sudden and uniform increase of these royalties is likely to have an un settling effect in the industry and may retard the programme of coal production under the Second Five Year Plan ....... "14. Thus the above discussion makes it crystal clear that the statutory mining leases in respect of coal which sprang up under section 10(1) of the Bihar Land Reforms Act also acquired a temporary immunity from the applicability of sections 9(1) and 16(1) of the Act until the Central Government came out with a notification making the said provisions applicable with or without modification to these leases. Accordingly, we have no hesitation in holding in agreement with the High Court that the further demand for royalty for the second period indicated above cannot also be sustained.15. | 0[ds]We, therefore, find ourselves in complete agreement with the High Court that the claim for royalty for the period prior to June 1, 1958, is wholly unfounded and cannot be supported.So far as the demand for royalty for the period beginning with June 1, 1958 and ending with December 31, 1965 is concerned, we are of the opinion that no exception can be taken to the view expressed in this behalf by the High Court in its judgment under appeal. This becomes abundantly clear from a close scrutiny of section 30A (supra) of the 1957 Act, the provisions whereof may usefully be recalled at this stage. Before examining, however, . section 30A, it would be profitable to advert to section 9 (supra) of the Act. This section, it would be seen consists of three parts. Sub-section (1) casts a liability on the holder of a mining lease granted before June 1, 1958--the date of the commencement of the Act--to pay royalty in respect of any mineral removed by him from the leased area after that date at the rate for the time being specified in the Second Schedule, notwithstanding anything contained in the instrument of lease or in any law in force on the aforesaid date of the commencement of the Act . Sub-section (2) makes also the holder of a mining lease granted on or after June 1, 1958 liable to pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being spec ified in the Second Schedule. Sub-section (3) empowers the Central Government to amend the Second Schedule and enhance or reduce the rate of royalty in re- spect of any mineral by issue of a notification subject to the restriction contained in the proviso to this sub-sec- tion. Section 30A which, as is evident from its opening words, has an overriding effect on the other provisions of the Act affords a temporary protection fro m applicability of section 9(1) and section 16(1) of the Act not only to the leases granted before October 25, 1949, but also to the statutory leases which came into existence as a result of the operation of s. 10(1) of the Bihar Land Reforms Act and replaced the former category of leases subsisting immediately before the date of vesting in the State of the estates or tenures on the publication of the notif ications under sections 3 and 3A of the Bihar Land Reforms Act. This conclusion irresistibly flows from the words "or in relation to" occurring in section 30A of the 1957 Act after the words "shall not apply to" and before the words "mining leases granted before the 25th day of October 1949" The aforesaid words which are of great significance of enlarge the scope of section 30A and bring within the umbrella of its protection the mining leases granted before October 25, 1949 as also the statutory leases which sprang up in their place by virtue of the legal fiction contained in Section 10(1) of the Bihar Land Reforms Act on the re: sting in the State of the estates or tenures. As expressly ordained by sub-sections (1) &(2) of section 10 of the Bihar Land Reforms Act, not only the holder of a statutory lease had to be the same as the holder of a subsisting lease for the remainder of the term of that lease but the terms and conditions of the statutory lease had also mutatis mutandis to be the same as the terms and conditions of the subsisting lease i.e. the original lease except to the extent mentioned in sub-section (2). Thus the statutory lease being inextricably linked up with the aforesaid subsisting lease which it replaced as a result of the aforesaid provisions of the Act came within the purview of section 30A of the 1957 Act. The interpretation sought to be placed by the appellants on the phraseology of section 30A of the 1957 Act cannot be accepted as;. it would unduly re strict and limit the scope of that section and defeat the object which it was intended to effectuate viz. to mitigate the rigour of liability for payment of royalty under section 9 of the 1957 Act at the rate specified in the Second Schedule in respect of the coal removed from the leased area after the commencement of the Act. If as contended by the appellants, the protection envisaged by se ction 30A is restricted to leases granted before October 25, 1949, sec- tion 30A would be rendered nugatory because on the coming into being of the statutory leases as a result of section 10(1) of the Bihar Land Re forms Act, there would hardly be left any mining lease to which section 30A of the 1957 Act would be applicable. Thus there can be no room for doubt that the Legislature intended that section 30A of the 1957 Act should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to the following statement of objects and reasons given in the Bill which sought to introduce section 30A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of section 30A and the extent of the protection afforded by it:--" .... It is considered that these changes will have numerous undesirable consequences. The areas covered by these mining leases are principally in West Bengal and Bihar and they account for as much as 80 per cent of the total coal production in the country. The royalties paid on this coal vary over a wide range but are generally much below the rate per ton prescribed in the Second Schedule. A sudden and uniform increase of these royalties is likely to have an un settling effect in the industry and may retard the programme of coal production under the Second Five Year Plan .......the above discussion makes it crystal clear that the statutory mining leases in respect of coal which sprang up under section 10(1) of the Bihar Land Reforms Act also acquired a temporary immunity from the applicability of sections 9(1) and 16(1) of the Act until the Central Government came out with a notification making the said provisions applicable with or without modification to these leases. Accordingly, we have no hesitation in holding in agreement with the High Court that the further demand for royalty for the second period indicated above cannot also be sustained. | 0 | 7,096 | 1,192 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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from a close scrutiny of section 30A (supra) of the 1957 Act, the provisions whereof may usefully be recalled at this stage. Before examining, however, . section 30A, it would be profitable to advert to section 9 (supra) of the Act. This section, it would be seen consists of three parts. Sub-section (1) casts a liability on the holder of a mining lease granted before June 1, 1958--the date of the commencement of the Act--to pay royalty in respect of any mineral removed by him from the leased area after that date at the rate for the time being specified in the Second Schedule, notwithstanding anything contained in the instrument of lease or in any law in force on the aforesaid date of the commencement of the Act . Sub-section (2) makes also the holder of a mining lease granted on or after June 1, 1958 liable to pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being spec ified in the Second Schedule. Sub-section (3) empowers the Central Government to amend the Second Schedule and enhance or reduce the rate of royalty in re- spect of any mineral by issue of a notification subject to the restriction contained in the proviso to this sub-sec- tion. Section 30A which, as is evident from its opening words, has an overriding effect on the other provisions of the Act affords a temporary protection fro m applicability of section 9(1) and section 16(1) of the Act not only to the leases granted before October 25, 1949, but also to the statutory leases which came into existence as a result of the operation of s. 10(1) of the Bihar Land Reforms Act and replaced the former category of leases subsisting immediately before the date of vesting in the State of the estates or tenures on the publication of the notif ications under sections 3 and 3A of the Bihar Land Reforms Act. This conclusion irresistibly flows from the words "or in relation to" occurring in section 30A of the 1957 Act after the words "shall not apply to" and before the words "mining leases granted before the 25th day of October 1949" The aforesaid words which are of great significance of enlarge the scope of section 30A and bring within the umbrella of its protection the mining leases granted before October 25, 1949 as also the statutory leases which sprang up in their place by virtue of the legal fiction contained in Section 10(1) of the Bihar Land Reforms Act on the re: sting in the State of the estates or tenures. As expressly ordained by sub-sections (1) &(2) of section 10 of the Bihar Land Reforms Act, not only the holder of a statutory lease had to be the same as the holder of a subsisting lease for the remainder of the term of that lease but the terms and conditions of the statutory lease had also mutatis mutandis to be the same as the terms and conditions of the subsisting lease i.e. the original lease except to the extent mentioned in sub-section (2). Thus the statutory lease being inextricably linked up with the aforesaid subsisting lease which it replaced as a result of the aforesaid provisions of the Act came within the purview of section 30A of the 1957 Act. The interpretation sought to be placed by the appellants on the phraseology of section 30A of the 1957 Act cannot be accepted as;. it would unduly re strict and limit the scope of that section and defeat the object which it was intended to effectuate viz. to mitigate the rigour of liability for payment of royalty under section 9 of the 1957 Act at the rate specified in the Second Schedule in respect of the coal removed from the leased area after the commencement of the Act. If as contended by the appellants, the protection envisaged by se ction 30A is restricted to leases granted before October 25, 1949, sec- tion 30A would be rendered nugatory because on the coming into being of the statutory leases as a result of section 10(1) of the Bihar Land Re forms Act, there would hardly be left any mining lease to which section 30A of the 1957 Act would be applicable. Thus there can be no room for doubt that the Legislature intended that section 30A of the 1957 Act should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to the following statement of objects and reasons given in the Bill which sought to introduce section 30A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of section 30A and the extent of the protection afforded by it:--" .... It is considered that these changes will have numerous undesirable consequences. The areas covered by these mining leases are principally in West Bengal and Bihar and they account for as much as 80 per cent of the total coal production in the country. The royalties paid on this coal vary over a wide range but are generally much below the rate per ton prescribed in the Second Schedule. A sudden and uniform increase of these royalties is likely to have an un settling effect in the industry and may retard the programme of coal production under the Second Five Year Plan ....... "14. Thus the above discussion makes it crystal clear that the statutory mining leases in respect of coal which sprang up under section 10(1) of the Bihar Land Reforms Act also acquired a temporary immunity from the applicability of sections 9(1) and 16(1) of the Act until the Central Government came out with a notification making the said provisions applicable with or without modification to these leases. Accordingly, we have no hesitation in holding in agreement with the High Court that the further demand for royalty for the second period indicated above cannot also be sustained.15.
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becomes abundantly clear from a close scrutiny of section 30A (supra) of the 1957 Act, the provisions whereof may usefully be recalled at this stage. Before examining, however, . section 30A, it would be profitable to advert to section 9 (supra) of the Act. This section, it would be seen consists of three parts. Sub-section (1) casts a liability on the holder of a mining lease granted before June 1, 1958--the date of the commencement of the Act--to pay royalty in respect of any mineral removed by him from the leased area after that date at the rate for the time being specified in the Second Schedule, notwithstanding anything contained in the instrument of lease or in any law in force on the aforesaid date of the commencement of the Act . Sub-section (2) makes also the holder of a mining lease granted on or after June 1, 1958 liable to pay royalty in respect of any mineral removed by him from the leased area at the rate for the time being spec ified in the Second Schedule. Sub-section (3) empowers the Central Government to amend the Second Schedule and enhance or reduce the rate of royalty in re- spect of any mineral by issue of a notification subject to the restriction contained in the proviso to this sub-sec- tion. Section 30A which, as is evident from its opening words, has an overriding effect on the other provisions of the Act affords a temporary protection fro m applicability of section 9(1) and section 16(1) of the Act not only to the leases granted before October 25, 1949, but also to the statutory leases which came into existence as a result of the operation of s. 10(1) of the Bihar Land Reforms Act and replaced the former category of leases subsisting immediately before the date of vesting in the State of the estates or tenures on the publication of the notif ications under sections 3 and 3A of the Bihar Land Reforms Act. This conclusion irresistibly flows from the words "or in relation to" occurring in section 30A of the 1957 Act after the words "shall not apply to" and before the words "mining leases granted before the 25th day of October 1949" The aforesaid words which are of great significance of enlarge the scope of section 30A and bring within the umbrella of its protection the mining leases granted before October 25, 1949 as also the statutory leases which sprang up in their place by virtue of the legal fiction contained in Section 10(1) of the Bihar Land Reforms Act on the re: sting in the State of the estates or tenures. As expressly ordained by sub-sections (1) &(2) of section 10 of the Bihar Land Reforms Act, not only the holder of a statutory lease had to be the same as the holder of a subsisting lease for the remainder of the term of that lease but the terms and conditions of the statutory lease had also mutatis mutandis to be the same as the terms and conditions of the subsisting lease i.e. the original lease except to the extent mentioned in sub-section (2). Thus the statutory lease being inextricably linked up with the aforesaid subsisting lease which it replaced as a result of the aforesaid provisions of the Act came within the purview of section 30A of the 1957 Act. The interpretation sought to be placed by the appellants on the phraseology of section 30A of the 1957 Act cannot be accepted as;. it would unduly re strict and limit the scope of that section and defeat the object which it was intended to effectuate viz. to mitigate the rigour of liability for payment of royalty under section 9 of the 1957 Act at the rate specified in the Second Schedule in respect of the coal removed from the leased area after the commencement of the Act. If as contended by the appellants, the protection envisaged by se ction 30A is restricted to leases granted before October 25, 1949, sec- tion 30A would be rendered nugatory because on the coming into being of the statutory leases as a result of section 10(1) of the Bihar Land Re forms Act, there would hardly be left any mining lease to which section 30A of the 1957 Act would be applicable. Thus there can be no room for doubt that the Legislature intended that section 30A of the 1957 Act should cover the aforesaid statutory leases as well. It will be apposite in this connection to refer to the following statement of objects and reasons given in the Bill which sought to introduce section 30A in the 1957 Act with retrospective effect which can be usefully resorted to for ascertaining the true scope of section 30A and the extent of the protection afforded by it:--" .... It is considered that these changes will have numerous undesirable consequences. The areas covered by these mining leases are principally in West Bengal and Bihar and they account for as much as 80 per cent of the total coal production in the country. The royalties paid on this coal vary over a wide range but are generally much below the rate per ton prescribed in the Second Schedule. A sudden and uniform increase of these royalties is likely to have an un settling effect in the industry and may retard the programme of coal production under the Second Five Year Plan .......the above discussion makes it crystal clear that the statutory mining leases in respect of coal which sprang up under section 10(1) of the Bihar Land Reforms Act also acquired a temporary immunity from the applicability of sections 9(1) and 16(1) of the Act until the Central Government came out with a notification making the said provisions applicable with or without modification to these leases. Accordingly, we have no hesitation in holding in agreement with the High Court that the further demand for royalty for the second period indicated above cannot also be sustained.
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Amrit Lal Goverdhan Lalan Vs. State Bank Of Travancore & Ors | convection it is necessary to consider the provisions of Section 140 of the Indian Contract Act, 1872 which states:"Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for is invested with all the rights which the creditor had against the principal debtor (s)."This section embodies the general rule of equity expounded by Sir Samuel Romilly as counsel and accepted by the Court of Chancery in Crythorne v. Swinburne, ( 1807) 14 yes. 160, namely :"The surety will be entitled to every remedy which the creditor has against the principal debtor ; to enforce every security and all means of payment, to stand in the place of the creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the surety having a right to have those securities transferred to him, though there was no stipulation for that; and to avail himself of all those securities against the debtor. This right of a surety also stands, not upon contract but upon a principle of natural justice."The language of the section which employs the words "is invested with all the rights which the creditor had against the principal debtor" makes it plain that even without the necessity of a transfer, the law vests those rights in the surety. Section 141 of the Indian Contract Act, 1872 states :"A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses, or, without the consent of the surety, parts with such security the surety is discharged to the extent of the value of the security"As pointed out by this Court in State of Madhva Pradesh v Kaluram. 1967-1 SCR 266 = (AIR 1967 SC 1105 ). the expression "security" in this section is not used in any technical sense, it includes all rights which the creditor has against the property at the date of the contract. The surely is entitled on payment of the debt or performance of all that he is liable for to the benefit of the rights of the creditor against the principal debtor which arise out of the transaction which gives rise to the right or liability. The surety is therefore on payment of the amount due by the principal debtor entitled to he put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or parted with the security without the consent of the surety the latter is by the express provision contained in Section 141. discharged to the extent of the value of the security lost or parted with.In Wulff and Billing v. Jay, (1872) 7 QB 756, Hannen J. stated the law as follows :"......... I take it to he established that the defendant became surety upon the faith of there being some real and substantial security pledged, as well as his own credit, to the plaintiff; and he was entitled, therefore, to the benefit of that real and substantial security in the event of his being called on to fulfill his duty as a surety, and to pay the debt for which he had so become surety. He will, however, be discharged from his liability as surety if the creditors have put it out of their power to hand over to the surety the means of recouping himself by the security given by the principal. That doctrine is very clearly expressed in the notes in Rees v. Barrington, 2 White and T. L. C., (4th Ed.) at p. 1002-As a surety, on payment of the debt, is entitled to all the securities of the creditor, whether he is aware of their existence or hot, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged. A surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as they formerly stood in his hands."It is true that Section 141 of the Indian Contract Act has limited the suretys right to securities held by the creditor at the date of his becoming surety and has modified the English rule that the surety is entitled to the securities given to the creditor both before and after the contract of surety. But subject to this variation, Section 141 of the Indian Contract Act incorporates the rule of English Law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him. Upon the evidence adduced by the parties in this case we are satisfied that there was shortage of goods of the value of Rs. 35,690 brought about by the negligence of the Bank or for some other reason and to that extent there must be deemed to be a loss by the Bank of the securities which the Bank had at the time when the contract of surety was entered into. It follows therefore that the principle of Section 141 of the Indian Contract Act applies to this case and the surety is discharged of the liability to the Bank to the extent of Rs. 35,690. We accordingly hold that the respondent Bank is entitled to a decree against respondent 6, the appellant only to the extent of Rs. 5,243.58 and not to the sum of Rs. 40,933.58 and to proportionate costs. | 1[ds]In our opinion, there is no warrant for the argument of the appellant. It is manifest that the act of giving time to the borrowers to make up the quantity of the goods found to be short on weighment by the Bank cannot be considered to be a "promise to give time" to the borrowers as contemplated by Sec. 135 of the Indian Contract Act. In this connection reference should be made to Clause 9 of Ex. P-1 which provides that the borrowers shall be responsible for the quantity and quality of goods pledged and also for the correctness of the statements and returns furnished to the Bank from time to time. It is stated in Ex. P-1 that the borrowers have declared and agreed that the goods pledged with the Bank have not been actually weighed or valued in order to verify the quantity and quality of the goods pledged. It is in the light of these clauses of the agreement that the act of giving time to the principal debtor has to be considered. The act of the Bank in giving time to the principal debtor to make up the quantity of the goods pledged is not tantamount to the giving of time to the principal debtor for making the payment of the money within the meaning of Section 135 of the Indian Contract Act. What really constitutes giving of time is the extension of the period at which, by the contract between them, the principal debtor was originally obliged to pay the creditor by substituting a new and valid contract between the creditor and the principal debtor to which the surety does not assent.The reason why an agreement to give time discharges the surety is because if after making such an agreement, the creditor were to sue the surety the latter would at once be turned on the principal debtor in breach of the agreement to given time so that the effect of such an agreement is to prevent the surety from either requiring the creditor to call upon the principal debtor to pay of the debt or himself having off the debt, and then suing the principal debtor, thereby causing prejudice to the surety [Rouse v Bradford Banking Co., 1894-2 Ch 32 CA at p. 75. per A L. Smith, L J.]"Thus to substitute for payment in one sum payment by instalments amounts to a giving of time. Again, whenever the taking of a new security from the principal debtor by the creditor operates as a giving of time, the surety is no longer liable, but not where that transaction has no such effect." (Halsburys Laws of England, Vol. 18, p.our opinion, the provisions of Section 1.35 of the Indian Contract Act are not attracted to the present case and the argument of the appellant on this point must be rejected.7. We proceed to consider the next important question arising in this case, namely,whether a portion of the security was lost by the creditor or parted with without the suretys consent and whether the surety is discharged to the extent of the value of the security so lost.It was pointed out on behalf of the appellant that when the quantity of the goods actually in stock was verified with the weekly statement dated April 18, 1957 shortage of goods to the value of Rs. 35,690 was found. The weekly statement dated March 15, 1957 shows that the stock was valued at Rs. 99,991 and odd and in the course of his evidence the Agent of the respondent Bank said that "he did not know how the shortage occurred" and "there was a possibility of defendants 1 to 5 taking away the goods" On behalf of the respondent Bank reference was made to Clause 5 of Ex. P-4 which has already beenis true that Section 141 of the Indian Contract Act has limited the suretys right to securities held by the creditor at the date of his becoming surety and has modified the English rule that the surety is entitled to the securities given to the creditor both before and after the contract of surety. But subject to this variation, Section 141 of the Indian Contract Act incorporates the rule of English Law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him. Upon the evidence adduced by the parties in this case we are satisfied that there was shortage of goods of the value of Rs. 35,690 brought about by the negligence of the Bank or for some other reason and to that extent there must be deemed to be a loss by the Bank of the securities which the Bank had at the time when the contract of surety was entered into. It follows therefore that the principle of Section 141 of the Indian Contract Act applies to this case and the surety is discharged of the liability to the Bank to the extent of Rs. 35,690. We accordingly hold that the respondent Bank is entitled to a decree against respondent 6, the appellant only to the extent of Rs. 5,243.58 and not to the sum of Rs. 40,933.58 and to proportionate costs. | 1 | 4,199 | 934 | ### 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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convection it is necessary to consider the provisions of Section 140 of the Indian Contract Act, 1872 which states:"Where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for is invested with all the rights which the creditor had against the principal debtor (s)."This section embodies the general rule of equity expounded by Sir Samuel Romilly as counsel and accepted by the Court of Chancery in Crythorne v. Swinburne, ( 1807) 14 yes. 160, namely :"The surety will be entitled to every remedy which the creditor has against the principal debtor ; to enforce every security and all means of payment, to stand in the place of the creditor, not only through the medium of contract, but even by means of securities entered into without the knowledge of the surety having a right to have those securities transferred to him, though there was no stipulation for that; and to avail himself of all those securities against the debtor. This right of a surety also stands, not upon contract but upon a principle of natural justice."The language of the section which employs the words "is invested with all the rights which the creditor had against the principal debtor" makes it plain that even without the necessity of a transfer, the law vests those rights in the surety. Section 141 of the Indian Contract Act, 1872 states :"A surety is entitled to the benefit of every security which the creditor has against the principal debtor at the time when the contract of suretyship is entered into, whether the surety knows of the existence of such security or not; and, if the creditor loses, or, without the consent of the surety, parts with such security the surety is discharged to the extent of the value of the security"As pointed out by this Court in State of Madhva Pradesh v Kaluram. 1967-1 SCR 266 = (AIR 1967 SC 1105 ). the expression "security" in this section is not used in any technical sense, it includes all rights which the creditor has against the property at the date of the contract. The surely is entitled on payment of the debt or performance of all that he is liable for to the benefit of the rights of the creditor against the principal debtor which arise out of the transaction which gives rise to the right or liability. The surety is therefore on payment of the amount due by the principal debtor entitled to he put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or parted with the security without the consent of the surety the latter is by the express provision contained in Section 141. discharged to the extent of the value of the security lost or parted with.In Wulff and Billing v. Jay, (1872) 7 QB 756, Hannen J. stated the law as follows :"......... I take it to he established that the defendant became surety upon the faith of there being some real and substantial security pledged, as well as his own credit, to the plaintiff; and he was entitled, therefore, to the benefit of that real and substantial security in the event of his being called on to fulfill his duty as a surety, and to pay the debt for which he had so become surety. He will, however, be discharged from his liability as surety if the creditors have put it out of their power to hand over to the surety the means of recouping himself by the security given by the principal. That doctrine is very clearly expressed in the notes in Rees v. Barrington, 2 White and T. L. C., (4th Ed.) at p. 1002-As a surety, on payment of the debt, is entitled to all the securities of the creditor, whether he is aware of their existence or hot, even though they were given after the contract of suretyship, if the creditor who has had, or ought to have had, them in his full possession or power, loses them or permits them to get into the possession of the debtor, or does not make them effectual by giving proper notice, the surety to the extent of such security will be discharged. A surety, moreover, will be released if the creditor, by reason of what he has done, cannot, on payment by the surety, give him the securities in exactly the same condition as they formerly stood in his hands."It is true that Section 141 of the Indian Contract Act has limited the suretys right to securities held by the creditor at the date of his becoming surety and has modified the English rule that the surety is entitled to the securities given to the creditor both before and after the contract of surety. But subject to this variation, Section 141 of the Indian Contract Act incorporates the rule of English Law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him. Upon the evidence adduced by the parties in this case we are satisfied that there was shortage of goods of the value of Rs. 35,690 brought about by the negligence of the Bank or for some other reason and to that extent there must be deemed to be a loss by the Bank of the securities which the Bank had at the time when the contract of surety was entered into. It follows therefore that the principle of Section 141 of the Indian Contract Act applies to this case and the surety is discharged of the liability to the Bank to the extent of Rs. 35,690. We accordingly hold that the respondent Bank is entitled to a decree against respondent 6, the appellant only to the extent of Rs. 5,243.58 and not to the sum of Rs. 40,933.58 and to proportionate costs.
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In our opinion, there is no warrant for the argument of the appellant. It is manifest that the act of giving time to the borrowers to make up the quantity of the goods found to be short on weighment by the Bank cannot be considered to be a "promise to give time" to the borrowers as contemplated by Sec. 135 of the Indian Contract Act. In this connection reference should be made to Clause 9 of Ex. P-1 which provides that the borrowers shall be responsible for the quantity and quality of goods pledged and also for the correctness of the statements and returns furnished to the Bank from time to time. It is stated in Ex. P-1 that the borrowers have declared and agreed that the goods pledged with the Bank have not been actually weighed or valued in order to verify the quantity and quality of the goods pledged. It is in the light of these clauses of the agreement that the act of giving time to the principal debtor has to be considered. The act of the Bank in giving time to the principal debtor to make up the quantity of the goods pledged is not tantamount to the giving of time to the principal debtor for making the payment of the money within the meaning of Section 135 of the Indian Contract Act. What really constitutes giving of time is the extension of the period at which, by the contract between them, the principal debtor was originally obliged to pay the creditor by substituting a new and valid contract between the creditor and the principal debtor to which the surety does not assent.The reason why an agreement to give time discharges the surety is because if after making such an agreement, the creditor were to sue the surety the latter would at once be turned on the principal debtor in breach of the agreement to given time so that the effect of such an agreement is to prevent the surety from either requiring the creditor to call upon the principal debtor to pay of the debt or himself having off the debt, and then suing the principal debtor, thereby causing prejudice to the surety [Rouse v Bradford Banking Co., 1894-2 Ch 32 CA at p. 75. per A L. Smith, L J.]"Thus to substitute for payment in one sum payment by instalments amounts to a giving of time. Again, whenever the taking of a new security from the principal debtor by the creditor operates as a giving of time, the surety is no longer liable, but not where that transaction has no such effect." (Halsburys Laws of England, Vol. 18, p.our opinion, the provisions of Section 1.35 of the Indian Contract Act are not attracted to the present case and the argument of the appellant on this point must be rejected.7. We proceed to consider the next important question arising in this case, namely,whether a portion of the security was lost by the creditor or parted with without the suretys consent and whether the surety is discharged to the extent of the value of the security so lost.It was pointed out on behalf of the appellant that when the quantity of the goods actually in stock was verified with the weekly statement dated April 18, 1957 shortage of goods to the value of Rs. 35,690 was found. The weekly statement dated March 15, 1957 shows that the stock was valued at Rs. 99,991 and odd and in the course of his evidence the Agent of the respondent Bank said that "he did not know how the shortage occurred" and "there was a possibility of defendants 1 to 5 taking away the goods" On behalf of the respondent Bank reference was made to Clause 5 of Ex. P-4 which has already beenis true that Section 141 of the Indian Contract Act has limited the suretys right to securities held by the creditor at the date of his becoming surety and has modified the English rule that the surety is entitled to the securities given to the creditor both before and after the contract of surety. But subject to this variation, Section 141 of the Indian Contract Act incorporates the rule of English Law relating to the discharge from liability of a surety when the creditor parts with or loses the security held by him. Upon the evidence adduced by the parties in this case we are satisfied that there was shortage of goods of the value of Rs. 35,690 brought about by the negligence of the Bank or for some other reason and to that extent there must be deemed to be a loss by the Bank of the securities which the Bank had at the time when the contract of surety was entered into. It follows therefore that the principle of Section 141 of the Indian Contract Act applies to this case and the surety is discharged of the liability to the Bank to the extent of Rs. 35,690. We accordingly hold that the respondent Bank is entitled to a decree against respondent 6, the appellant only to the extent of Rs. 5,243.58 and not to the sum of Rs. 40,933.58 and to proportionate costs.
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K.Venkataramiah Vs. A. Seetharama Reddy & Ors | these documents. We also directed the Tribunal to record the evidence adduced in proof of these two registers and submit the same to the High Court for consideration in the above appeal. The Tribunal accordingly recalled R.W. 8, the Head Master, Government Muslim High School, Kurnool, and also examined R.W. 10, the Head Master of the same school for the years 1936 to 1945. The Register of Admissions and Withdrawals relating to the School from 7-7-1919 to 15-1-1938 is marked as exhibit R-19 and the register from 30-6-1926 to 14-2-1949 is marked as Exhibit R-20. The entries in the two register relating to the 1st respondent are Exhibits R-21 and R- 24. 16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddys age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence to enable it to pronounce judgment. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable us to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R. 27 (1) (b) of the Code. 17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254 : (AIR 1931 PC 143 ) the Privy Council while discussing whether additional evidence can be admitted observed : It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examine the evidence as it stands, some inherent lacuna or defect becomes apparent. 18. As the Privy Council proceeded to point out : It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. 19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27 (1) (b) of O. 41 of the Code. The contention that the decision of the High Court on the question of the respondents age was vitiated by reason of it being based on inadmissible evidence, must therefore fail. 20. Another difficulty in the appellants way may also be mentioned. As has been said above the appellant did file before the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Courts order refusing the application for a certificate under Art. 133(1) (c) of the Constitution that no. objection that the requirements of O. 41 R. 21, C. P. C. were not satisfied was raised either at the time when the court directed the Tribunal to record the statements or at the time when the court directed the Tribunal to record the statements or at the time of the hearing of the appeal. This order was passed by the learned Chief Justice and Mr. Justice Chandrasekhara Sastry who had made the order allowing admission of additional evidence and also heard the appeal. We are bound to bold therefore that though the appellant did make an application objecting to the admission of additional evidence he did not press that application. 21. On the principle laid down in Jagarnath Pershad v. Hanuman Pershad 36 Ind App 221 (PC) that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law. 22. There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision. | 0[ds]8. The High Court also came to the same conclusion on this issue as regards Seetharam Reddys age. In coming to this conclusion it has relied not only on the vakalatnama Ex. R-3 mentioned above but also on four other documents. viz, Exs. R-5 and R-6, which the Tribunal rejected as unreliable and Exs. R-19 and R-20 which were not tendered in evidence before the Tribunal but came before the High Court is additional evidence. The appellant contends that the High Court acted without jurisdiction in admitting additional evidence9. We are clearly of opinion that even if it was found that the High Court erred in taking the additional evidence that would not be a case of lack of jurisdiction but would be an error in the exercise of jurisdictionWe are aware of no. case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word shall is used in R. 27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddys age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence to enable it to pronounce judgment. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable us to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R. 27 (1) (b) of the Code19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27 (1) (b) of O. 41 of the Code. The contention that the decision of the High Court on the question of the respondents age was vitiated by reason of it being based on inadmissible evidence, must therefore fail21. On the principle laid down in Jagarnath Pershad v. Hanuman Pershad 36 Ind App 221 (PC) that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law22. There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision. | 0 | 3,850 | 790 | ### Instruction:
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these documents. We also directed the Tribunal to record the evidence adduced in proof of these two registers and submit the same to the High Court for consideration in the above appeal. The Tribunal accordingly recalled R.W. 8, the Head Master, Government Muslim High School, Kurnool, and also examined R.W. 10, the Head Master of the same school for the years 1936 to 1945. The Register of Admissions and Withdrawals relating to the School from 7-7-1919 to 15-1-1938 is marked as exhibit R-19 and the register from 30-6-1926 to 14-2-1949 is marked as Exhibit R-20. The entries in the two register relating to the 1st respondent are Exhibits R-21 and R- 24. 16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddys age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence to enable it to pronounce judgment. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable us to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R. 27 (1) (b) of the Code. 17. It is easy to see that such requirement of the Court to enable it to pronounce judgment or for any other substantial cause is not likely to arise ordinarily unless some inherent lacuna or defect becomes apparent on an examination of the evidence. That is why in Parsotim Thakur v. Lal Mohar Thakur, 53 Ind App 254 : (AIR 1931 PC 143 ) the Privy Council while discussing whether additional evidence can be admitted observed : It may be required to enable the Court to pronounce judgment, or for any other substantial cause, but in either case it must be the Court that requires it. This is the plain grammatical reading of the sub-clause. The legitimate occasion for the exercise of this discretion is not whenever before the appeal is heard a party applies to adduce fresh evidence, but when on examine the evidence as it stands, some inherent lacuna or defect becomes apparent. 18. As the Privy Council proceeded to point out : It may well be that the defect may be pointed out by a party, or that a party may move the Court to supply the defect, but the requirement must be the requirement of the Court upon its appreciation of the evidence as it stands. 19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27 (1) (b) of O. 41 of the Code. The contention that the decision of the High Court on the question of the respondents age was vitiated by reason of it being based on inadmissible evidence, must therefore fail. 20. Another difficulty in the appellants way may also be mentioned. As has been said above the appellant did file before the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Court a petition objecting to the reception of additional evidence. We find it stated however in the High Courts order refusing the application for a certificate under Art. 133(1) (c) of the Constitution that no. objection that the requirements of O. 41 R. 21, C. P. C. were not satisfied was raised either at the time when the court directed the Tribunal to record the statements or at the time when the court directed the Tribunal to record the statements or at the time of the hearing of the appeal. This order was passed by the learned Chief Justice and Mr. Justice Chandrasekhara Sastry who had made the order allowing admission of additional evidence and also heard the appeal. We are bound to bold therefore that though the appellant did make an application objecting to the admission of additional evidence he did not press that application. 21. On the principle laid down in Jagarnath Pershad v. Hanuman Pershad 36 Ind App 221 (PC) that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law. 22. There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision.
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8. The High Court also came to the same conclusion on this issue as regards Seetharam Reddys age. In coming to this conclusion it has relied not only on the vakalatnama Ex. R-3 mentioned above but also on four other documents. viz, Exs. R-5 and R-6, which the Tribunal rejected as unreliable and Exs. R-19 and R-20 which were not tendered in evidence before the Tribunal but came before the High Court is additional evidence. The appellant contends that the High Court acted without jurisdiction in admitting additional evidence9. We are clearly of opinion that even if it was found that the High Court erred in taking the additional evidence that would not be a case of lack of jurisdiction but would be an error in the exercise of jurisdictionWe are aware of no. case in which the correctness of this view has been doubted. It is worth noticing that when the 1908 Code was framed and O. 41 R. 27 took the place of the old S. 568, the legislature was content to leave the provision as it was and did not think it necessary to say anything to make the requirement of recording reasons imperative. It is true that the word shall is used in R. 27(2), but that by itself does not make it mandatory. We are therefore of opinion that the omission of the High Court to record reasons for allowing additional evidence does not vitiate such admission16. In view of what the High Court has stated in this passage it is not possible to say that the High Court made the order for admission of additional evidence without applying its mind. It seems clear that High Court thought, on a consideration of the evidence, in the light of the arguments that had been addressed already before it that it would assist them to arrive at the truth on the question of Seetharam Reddys age if the entries in the admission registers of the school were made available. It was vehemently urged by the learned counsel for the appellant that there was such a volume of evidence before the High Court that it could not be seriously suggested that the Court required any additional evidence to enable it to pronounce judgment. The requirement, it has to be remembered, was the requirement of the High Court, and it will not be right for us to examine the evidence to find out whether we would have required such additional evidence to enable us to pronounce judgment. Apart from this, it is well to remember that the appellate court has the power to allow additional evidence not only if it requires such evidence to enable it to pronounce judgment but also for any other substantial cause. There may well be cases where even though the court finds that it is able to pronounce judgment on the state of the record as it is, and so, it cannot strictly say that it requires additional evidence to enable it to pronounce judgment, it still considers that in the interest of justice something which remains obscure should be filled up so that it can pronounce its judgment in a more satisfactory manner. Such a case will be one for allowing additional evidence for any other substantial cause under R. 27 (1) (b) of the Code19. We are satisfied that in the present case the High Court allowed additional evidence to be admitted as it required such evidence either to enable it to pronounce judgment or for any other substantial cause within the meaning of R. 27 (1) (b) of O. 41 of the Code. The contention that the decision of the High Court on the question of the respondents age was vitiated by reason of it being based on inadmissible evidence, must therefore fail21. On the principle laid down in Jagarnath Pershad v. Hanuman Pershad 36 Ind App 221 (PC) that when additional evidence was taken with the assent of both sides or without objection at the time it was taken, it is not open to a party to complain of it later on, the appellant cannot now be heard to say that the additional evidence was taken in this case in breach of the provisions of law22. There is nothing therefore that would justify us in interfering with the findings of facts on which the High Court based its decision.
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New India Assurance Co. Ltd Vs. Union Of India | transit during its transshipment from a broad gauge wagon to a meter gauge wagon. Open delivery of the consignment was given by the railway an 31.8.1977 and a certificate of damage to this effect was issued by the railway administration. The damage caused to the consignment was also surveyed and the surveyor gave his report estimating the loss at Rs. 1, 96, 849/The claim made by the Plaintiff No. 2NGEF Ltd., the consignor, under the insurance policy was settled by the insurer by payment of Rs. 1, 96, 849/-. The consignor, plaintiff No. 2-NG EF Ltd. had written a letter in favour of the insurer plaintiff No. 1 New India Assurance Co. Ltd. authorising the insurer to recover the damages from the railway administration. After the statutory notice, New India Insurance Company Ltd. as the insurer filed the suit for recovery of the said amount impleading the consignor as Plaintiff No. 2 and the consignee as the proforma Defendant No. 3. The consignee-Defendant No. 3 remained ex-parte and did not contest the suit. The suit was contested only by the Union of India representing the railway administrations.3. The defence of the railway administrations was that ownership of goods was in the consignee-Bihar State Electricity Board (Defendant No. 3) and, therefore, the plaintiffs i.e. the insurer and the consignor had no right to sue. The liability for payment of compensation was also denied.4. It is significant that the Bihar State Electricity Board (Defendant No. 3) whose title to the goods was assert ed by the railway administration, apart from, not contesting the suit had also intimated the railway administration by a letter that it had no right or interest in the goods and, therefore, it had no objection to recovery of the amount by the plaintiffs from the railway administration. The letter Ex. P-9 dated 09.12.1978 sent by the consignee (Defendant No. 3) was addressed to the railway administration and countersigned by the Station Master of the destination stat ion at the time of giving open delivery of the goods. There was thus no dispute of title to the goods or right to sue between the consignor and consignee.5. The trial court accordingly rejected this defence of the railway administration and held that the consignor (Plaintiff No. 2) had title to the goods and, therefore, was entitled to maintain the suit It was also held that the damage to the goods was caused during transit by the negligence of the railway administration. The loss was assessed at the sum of Rs. 1, 97, 000/-. Accordingly, the suit was decreed in favour of the plaintiffs for recovery or Rs. 1, 97, 864/- with interest at the rate of 6 percent from Defendants 1 and 2, the Union of India representing the concerned railway administrations.6. In the first appeal filed by the Union of India, the High Court has reversed the trial courts judgment and decree. The High Court affirmed the finding of the trial court that the loss during transit was occasioned by the negligence of the railway administration. However, it further held that the property in goods had passed to the consignee (Defendant No. 3-Bihar State Electricity Board) when the consignment was booked on F.O.R. basis and the consignor (Plaintiff No. 1) had not cause of action against the railway administration to make the claim for loss to the consignment during transit. The High Court held that the right to sue was only in the consignee (Bihar State Electricity Board-Defendant No. 3). For this reason alone the appeal was allowed resulting in dismissal of me suit. 7. We have no doubt that the judgment of the High Court is erroneous. Irrespective of the general rule relating to the consignor s right to sue the railway administration for recovery of damages where the railway receipt names the consignee also, in the facts of the present case the plea of the railway administration to resist the consignors right to sue is wholly untenable. Admittedly, there is no dispute between the consignor and consignee about the ownership of goods or the right to sue. The letter Ex. P-9 dated 09.12.1978 of the consignee bearing the counter signature of the Station Master of the destination station and handed over to the railway administration at the time of the open delivery of the consignment stated clearly that the consginee (Bihar State Electricity Board) had no right or interest in the consignment and that it had no objection to recovery of the claim by the consignor from the railway administration. In such a situation there was no scope or occasion for the High Court to record a finding that the consignee had title to the goods.For this reason alone the finding of the High Court that it was the consignee alone, and not the consignor, who had the right to sue, is against the admitted facts and the relevant pleadings. The view taken by the High Court is clearly tenuous. 8. In Union of India v. West Punjab Factory 1966 AIR(SC) 395) a Constitution Bench of this Court held that ordinarily it is the consignor who can sue if there is damage to the consignment since the contract of carriage is between the consignor and the railway administration- the mere fact that the consignee is different from the consignor, does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title of goods has passed to the consignee has to be decided on other evidence.In short, whether title to goods has passed from the consignor to the consignee is a question of fact in each case. The ordinary rule indicated was that the consignor who enters into contract of carriage with the railway administration can sue. It is difficult to appreciate how, in the present case, the High Court could have dismissed the consignors suit particularly when the consignee had clearly intimated to the railway administration in writing that it did not claim any right or title in the goods. | 1[ds]7. We have no doubt that the judgment of the High Court is erroneous. Irrespective of the general rule relating to the consignor s right to sue the railway administration for recovery of damages where the railway receipt names the consignee also, in the facts of the present case the plea of the railway administration to resist the consignors right to sue is wholly untenable. Admittedly, there is no dispute between the consignor and consignee about the ownership of goods or the right to sue. The letter Ex. P-9 dated 09.12.1978 of the consignee bearing the counter signature of the Station Master of the destination station and handed over to the railway administration at the time of the open delivery of the consignment stated clearly that the consginee (Bihar State Electricity Board) had no right or interest in the consignment and that it had no objection to recovery of the claim by the consignor from the railway administration. In such a situation there was no scope or occasion for the High Court to record a finding that the consignee had title to the goods.For this reason alone the finding of the High Court that it was the consignee alone, and not the consignor, who had the right to sue, is against the admitted facts and the relevant pleadings. The view taken by the High Court is clearly tenuous. | 1 | 1,421 | 247 | ### 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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transit during its transshipment from a broad gauge wagon to a meter gauge wagon. Open delivery of the consignment was given by the railway an 31.8.1977 and a certificate of damage to this effect was issued by the railway administration. The damage caused to the consignment was also surveyed and the surveyor gave his report estimating the loss at Rs. 1, 96, 849/The claim made by the Plaintiff No. 2NGEF Ltd., the consignor, under the insurance policy was settled by the insurer by payment of Rs. 1, 96, 849/-. The consignor, plaintiff No. 2-NG EF Ltd. had written a letter in favour of the insurer plaintiff No. 1 New India Assurance Co. Ltd. authorising the insurer to recover the damages from the railway administration. After the statutory notice, New India Insurance Company Ltd. as the insurer filed the suit for recovery of the said amount impleading the consignor as Plaintiff No. 2 and the consignee as the proforma Defendant No. 3. The consignee-Defendant No. 3 remained ex-parte and did not contest the suit. The suit was contested only by the Union of India representing the railway administrations.3. The defence of the railway administrations was that ownership of goods was in the consignee-Bihar State Electricity Board (Defendant No. 3) and, therefore, the plaintiffs i.e. the insurer and the consignor had no right to sue. The liability for payment of compensation was also denied.4. It is significant that the Bihar State Electricity Board (Defendant No. 3) whose title to the goods was assert ed by the railway administration, apart from, not contesting the suit had also intimated the railway administration by a letter that it had no right or interest in the goods and, therefore, it had no objection to recovery of the amount by the plaintiffs from the railway administration. The letter Ex. P-9 dated 09.12.1978 sent by the consignee (Defendant No. 3) was addressed to the railway administration and countersigned by the Station Master of the destination stat ion at the time of giving open delivery of the goods. There was thus no dispute of title to the goods or right to sue between the consignor and consignee.5. The trial court accordingly rejected this defence of the railway administration and held that the consignor (Plaintiff No. 2) had title to the goods and, therefore, was entitled to maintain the suit It was also held that the damage to the goods was caused during transit by the negligence of the railway administration. The loss was assessed at the sum of Rs. 1, 97, 000/-. Accordingly, the suit was decreed in favour of the plaintiffs for recovery or Rs. 1, 97, 864/- with interest at the rate of 6 percent from Defendants 1 and 2, the Union of India representing the concerned railway administrations.6. In the first appeal filed by the Union of India, the High Court has reversed the trial courts judgment and decree. The High Court affirmed the finding of the trial court that the loss during transit was occasioned by the negligence of the railway administration. However, it further held that the property in goods had passed to the consignee (Defendant No. 3-Bihar State Electricity Board) when the consignment was booked on F.O.R. basis and the consignor (Plaintiff No. 1) had not cause of action against the railway administration to make the claim for loss to the consignment during transit. The High Court held that the right to sue was only in the consignee (Bihar State Electricity Board-Defendant No. 3). For this reason alone the appeal was allowed resulting in dismissal of me suit. 7. We have no doubt that the judgment of the High Court is erroneous. Irrespective of the general rule relating to the consignor s right to sue the railway administration for recovery of damages where the railway receipt names the consignee also, in the facts of the present case the plea of the railway administration to resist the consignors right to sue is wholly untenable. Admittedly, there is no dispute between the consignor and consignee about the ownership of goods or the right to sue. The letter Ex. P-9 dated 09.12.1978 of the consignee bearing the counter signature of the Station Master of the destination station and handed over to the railway administration at the time of the open delivery of the consignment stated clearly that the consginee (Bihar State Electricity Board) had no right or interest in the consignment and that it had no objection to recovery of the claim by the consignor from the railway administration. In such a situation there was no scope or occasion for the High Court to record a finding that the consignee had title to the goods.For this reason alone the finding of the High Court that it was the consignee alone, and not the consignor, who had the right to sue, is against the admitted facts and the relevant pleadings. The view taken by the High Court is clearly tenuous. 8. In Union of India v. West Punjab Factory 1966 AIR(SC) 395) a Constitution Bench of this Court held that ordinarily it is the consignor who can sue if there is damage to the consignment since the contract of carriage is between the consignor and the railway administration- the mere fact that the consignee is different from the consignor, does not necessarily pass title to the goods from the consignor to the consignee, and the question whether title of goods has passed to the consignee has to be decided on other evidence.In short, whether title to goods has passed from the consignor to the consignee is a question of fact in each case. The ordinary rule indicated was that the consignor who enters into contract of carriage with the railway administration can sue. It is difficult to appreciate how, in the present case, the High Court could have dismissed the consignors suit particularly when the consignee had clearly intimated to the railway administration in writing that it did not claim any right or title in the goods.
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1
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7. We have no doubt that the judgment of the High Court is erroneous. Irrespective of the general rule relating to the consignor s right to sue the railway administration for recovery of damages where the railway receipt names the consignee also, in the facts of the present case the plea of the railway administration to resist the consignors right to sue is wholly untenable. Admittedly, there is no dispute between the consignor and consignee about the ownership of goods or the right to sue. The letter Ex. P-9 dated 09.12.1978 of the consignee bearing the counter signature of the Station Master of the destination station and handed over to the railway administration at the time of the open delivery of the consignment stated clearly that the consginee (Bihar State Electricity Board) had no right or interest in the consignment and that it had no objection to recovery of the claim by the consignor from the railway administration. In such a situation there was no scope or occasion for the High Court to record a finding that the consignee had title to the goods.For this reason alone the finding of the High Court that it was the consignee alone, and not the consignor, who had the right to sue, is against the admitted facts and the relevant pleadings. The view taken by the High Court is clearly tenuous.
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Snowtex Investment Limited Vs. Principal Commissioner of Income Tax, Central-2, Kolkata | undue hardship to the Assessee, had taken the view that Section 43-B would not be attracted unless the sum payable by the assessee by way of tax, duty, cess or fee was payable in the same accounting year. If the tax was payable in the next accounting year, Section 43-B would not be attracted. This was done in order to prevent any undue hardship to Assessees such as the ones before us. The Memorandum of Reasons takes note of the combined effect of Section 43-B and the first proviso inserted by the Finance Act, 1987. After referring to the fact that the first proviso now removes the hardship caused to such taxpayers it explains the insertion of Explanation 2 as being for the purpose of removing any ambiguity about the term any sum payable under Clause (a) of Section 43-B. This Explanation is made retrospective. The Memorandum seems to proceed on the basis that Section 43-B read with the proviso takes care of the hardship situation and hence Explanation 2 can be inserted with retrospective effect to make clear the ambit of Section 43-B(a). Therefore, Section 43-B(a), the first proviso to Section 43-B and Explanation 2 have to be read together as giving effect to the true intention of Section 43-B. If Explanation 2 is retrospective, the first proviso will have to be so construed. Read in this light also, the proviso has to be read into Section 43-B from its inception along with Explanation 2. 26. The decision of the Court was intrinsically based on a holistic reading of the provisions of Section 43-B. The memorandum proceeded on the basis that Section 43-B read with the proviso was intended to alleviate a situation of hardship. Hence, Explanation 2 was enacted with retrospective effect to clarify the ambit of Section 43-B(a). This Court held that if Explanation 2 is retrospective, the first proviso would be similarly so construed. This position was re-enforced by a departmental circular. The Court, in other words, interpreted the intent of Parliament. 27. A similar line of enquiry has been adopted in the subsequent decision of this Court in Alom Extrusions (supra). In that case, while construing the provisions of Section 43-B, this Court held: 25. Before concluding, we extract hereinbelow the relevant observations of this Court in CIT v. J.H. Gotla (1985) 4 SCC 343 which reads as under: (SCC p. 360, para 47) 47. ... we should find out the intention from the language used by the legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. The test to be applied is essentially one of the intent of the legislature. 28. In a more recent decision in Commissioner of Income Tax v. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 , a Constitution Bench of this Court held thus: 42.1. Notes on Clauses appended to the Finance Bill, 2002 while proposing insertion of proviso categorically states that this amendment will take effect from 1.6.2002. These become epigraphic2 words, when seen in contradistinction to other amendments specifically stating those to be clarificatory or retrospectively depicting clear intention of the legislature. It can be seen from the same notes that a few other amendments in the Income Tax Act made by the same Finance Act specifically making those amendments retrospective. For example, Clause 40 seeks to amend Section 92-F. Clause (iii-a) of Section 92-F is amended so as to clarify that the activities mentioned in the said Clause include the carrying out of any work in pursuance of a contract. (emphasis supplied). This amendment takes effect retrospectively from 1-4-2002. Various other amendments also take place retrospectively. The Notes on Clauses show that the legislature is fully aware of three concepts: (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. 29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question. 30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect. 31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business. | 0[ds]19. At this stage, we will deal with the first submission which is that the Explanation to Section 73, as it stood prior to the amendment, excluded from the deeming definition of a speculation business, a situation where the principal business of a company was granting of loans and advances20. In the present case, there is no dispute about the fact that the Assessee was registered as an NBFC under the provisions of the Reserve Bank of India Act, 1934. Section 73(1) does not define specifically, the circumstances in which the principal business of a company would be regarded as a business of the specified description. In the present case, the principal business was urged to be the granting of loans and advances. We cannot accept this submission and are of the view that the High Court was justified in rejecting it. The circumstance, which in our view is of crucial significance, is how the Assessee construed its own line of business. The High Court has extracted what the Assessee stated before the assessing officer namely:... in our case the share trading is our sole business during the assessment year under concernFrom the above statement of the Assessee, it is evident that the Assessee itself stated that share trading was its sole business during the assessment year in question i.e. A.Y. 2008-200922. The correctness of this aspect of the submission which has been urged by learned senior Counsel need not be determined in the facts of the present aspect, since we are of the view that the High Court was justified in relying upon the specific admission of the Assessee that during the assessment year in question, its sole business was of dealing in shares. We must also advert to the circumstance that while the Assessee had furnished loans and advances of Rs. 11.32 crores during the assessment year, this included interest free lending to the extent of Rs. 9.58 crores. Having regard to these facts and circumstances, the specific admission of the Assessee before the assessing officer assumes significance. The Assessee made an admission on a statement of fact which in our view, must bind it. In this view of the matter, the principal business of the Assessee was not of granting loans and advances during the assessment year. As a consequence, the deeming fiction Under Section 73 would be attracted. Hence, the finding of the High Court, on the first aspect, cannot be faulted24. While amending the provisions of Section 43(5), the Parliament indeed was cognizant of the provisions which were contained in Section 73(4). The above memorandum indicates that the provisions of Section 73(4) were proposed to be amended so as to reduce the period of carry forward of speculation losses from eight assessment years to four assessment years. Having introduced an amendment to Section 73(4), the Parliament would have, if it intended to bring about a parity with the provisions of Section 43(5) introduced a specific amendment. Parliament, however, did not do so by the Finance Act 2005. It was only with effect from 1 April 2015 that an amendment was brought about to exclude trading in shares from the deeming provision contained in the Explanation to Section 73. Parliament may have had reasons to allow the situation to continue until the amendment was brought into force, including its view in regard to the stability of the stock market. Insofar as this Court is concerned, It would be difficult to hold that the provisions which were contained in the Finance Act (No. 2) 2014 insofar as they amended the Explanation to Section 73 were clarificatory or that notwithstanding the provision by which the amendment was brought into force with effect from 1 April 2015, that it should be given retrospective effect. We reject the second submission29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business. | 0 | 4,947 | 1,018 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
undue hardship to the Assessee, had taken the view that Section 43-B would not be attracted unless the sum payable by the assessee by way of tax, duty, cess or fee was payable in the same accounting year. If the tax was payable in the next accounting year, Section 43-B would not be attracted. This was done in order to prevent any undue hardship to Assessees such as the ones before us. The Memorandum of Reasons takes note of the combined effect of Section 43-B and the first proviso inserted by the Finance Act, 1987. After referring to the fact that the first proviso now removes the hardship caused to such taxpayers it explains the insertion of Explanation 2 as being for the purpose of removing any ambiguity about the term any sum payable under Clause (a) of Section 43-B. This Explanation is made retrospective. The Memorandum seems to proceed on the basis that Section 43-B read with the proviso takes care of the hardship situation and hence Explanation 2 can be inserted with retrospective effect to make clear the ambit of Section 43-B(a). Therefore, Section 43-B(a), the first proviso to Section 43-B and Explanation 2 have to be read together as giving effect to the true intention of Section 43-B. If Explanation 2 is retrospective, the first proviso will have to be so construed. Read in this light also, the proviso has to be read into Section 43-B from its inception along with Explanation 2. 26. The decision of the Court was intrinsically based on a holistic reading of the provisions of Section 43-B. The memorandum proceeded on the basis that Section 43-B read with the proviso was intended to alleviate a situation of hardship. Hence, Explanation 2 was enacted with retrospective effect to clarify the ambit of Section 43-B(a). This Court held that if Explanation 2 is retrospective, the first proviso would be similarly so construed. This position was re-enforced by a departmental circular. The Court, in other words, interpreted the intent of Parliament. 27. A similar line of enquiry has been adopted in the subsequent decision of this Court in Alom Extrusions (supra). In that case, while construing the provisions of Section 43-B, this Court held: 25. Before concluding, we extract hereinbelow the relevant observations of this Court in CIT v. J.H. Gotla (1985) 4 SCC 343 which reads as under: (SCC p. 360, para 47) 47. ... we should find out the intention from the language used by the legislature and if strict literal construction leads to an absurd result i.e. result not intended to be subserved by the object of the legislation found in the manner indicated before, and if another construction is possible apart from strict literal construction then that construction should be preferred to the strict literal construction. Though equity and taxation are often strangers, attempts should be made that these do not remain always so and if a construction results in equity rather than in injustice, then such construction should be preferred to the literal construction. The test to be applied is essentially one of the intent of the legislature. 28. In a more recent decision in Commissioner of Income Tax v. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 , a Constitution Bench of this Court held thus: 42.1. Notes on Clauses appended to the Finance Bill, 2002 while proposing insertion of proviso categorically states that this amendment will take effect from 1.6.2002. These become epigraphic2 words, when seen in contradistinction to other amendments specifically stating those to be clarificatory or retrospectively depicting clear intention of the legislature. It can be seen from the same notes that a few other amendments in the Income Tax Act made by the same Finance Act specifically making those amendments retrospective. For example, Clause 40 seeks to amend Section 92-F. Clause (iii-a) of Section 92-F is amended so as to clarify that the activities mentioned in the said Clause include the carrying out of any work in pursuance of a contract. (emphasis supplied). This amendment takes effect retrospectively from 1-4-2002. Various other amendments also take place retrospectively. The Notes on Clauses show that the legislature is fully aware of three concepts: (i) prospective amendment with effect from a fixed date; (ii) retrospective amendment with effect from a fixed anterior date; and (iii) clarificatory amendments which are retrospective in nature. 29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question. 30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect. 31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business.
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0
### Explanation:
19. At this stage, we will deal with the first submission which is that the Explanation to Section 73, as it stood prior to the amendment, excluded from the deeming definition of a speculation business, a situation where the principal business of a company was granting of loans and advances20. In the present case, there is no dispute about the fact that the Assessee was registered as an NBFC under the provisions of the Reserve Bank of India Act, 1934. Section 73(1) does not define specifically, the circumstances in which the principal business of a company would be regarded as a business of the specified description. In the present case, the principal business was urged to be the granting of loans and advances. We cannot accept this submission and are of the view that the High Court was justified in rejecting it. The circumstance, which in our view is of crucial significance, is how the Assessee construed its own line of business. The High Court has extracted what the Assessee stated before the assessing officer namely:... in our case the share trading is our sole business during the assessment year under concernFrom the above statement of the Assessee, it is evident that the Assessee itself stated that share trading was its sole business during the assessment year in question i.e. A.Y. 2008-200922. The correctness of this aspect of the submission which has been urged by learned senior Counsel need not be determined in the facts of the present aspect, since we are of the view that the High Court was justified in relying upon the specific admission of the Assessee that during the assessment year in question, its sole business was of dealing in shares. We must also advert to the circumstance that while the Assessee had furnished loans and advances of Rs. 11.32 crores during the assessment year, this included interest free lending to the extent of Rs. 9.58 crores. Having regard to these facts and circumstances, the specific admission of the Assessee before the assessing officer assumes significance. The Assessee made an admission on a statement of fact which in our view, must bind it. In this view of the matter, the principal business of the Assessee was not of granting loans and advances during the assessment year. As a consequence, the deeming fiction Under Section 73 would be attracted. Hence, the finding of the High Court, on the first aspect, cannot be faulted24. While amending the provisions of Section 43(5), the Parliament indeed was cognizant of the provisions which were contained in Section 73(4). The above memorandum indicates that the provisions of Section 73(4) were proposed to be amended so as to reduce the period of carry forward of speculation losses from eight assessment years to four assessment years. Having introduced an amendment to Section 73(4), the Parliament would have, if it intended to bring about a parity with the provisions of Section 43(5) introduced a specific amendment. Parliament, however, did not do so by the Finance Act 2005. It was only with effect from 1 April 2015 that an amendment was brought about to exclude trading in shares from the deeming provision contained in the Explanation to Section 73. Parliament may have had reasons to allow the situation to continue until the amendment was brought into force, including its view in regard to the stability of the stock market. Insofar as this Court is concerned, It would be difficult to hold that the provisions which were contained in the Finance Act (No. 2) 2014 insofar as they amended the Explanation to Section 73 were clarificatory or that notwithstanding the provision by which the amendment was brought into force with effect from 1 April 2015, that it should be given retrospective effect. We reject the second submission29. In M/s. Vijay Industries (supra), decided on 1 March 2019, a three judge Bench of this Court held that the provisions of Section 80AB which were introduced by the Finance (No. 2) Act, 1980 with effect from 1 April 1981 could not be regarded as clarificatory in nature. The Court held that the provision was made with prospective effect and the amendment would not apply to assessment years 1979-1980 and 1980-1981 because the amended provision was brought on the statute book after the assessment years in question30. In conclusion, we therefore, hold that the amendment which was brought by Parliament to the Explanation to Section 73 by the Finance (No 2) Act 2014 was with effect from 1 April 2015. In its legislative wisdom, the Parliament amended Section 43(5) with effect from 1 April 2006 in relation to the business of trading in derivatives, Parliament brought about a specific amendment in the Explanation to Section 73, insofar as trading in shares is concerned, with effect from 1 April 2015. The latter amendment was intended to take effect from the date stipulated by Parliament and we see no reason to hold either that it was clarificatory or that the intent of Parliament was to give it retrospective effect31. The consequence is that in A.Y. 2008-2009, the loss which occurred to the Assessee as a result of its activity of trading in shares (a loss arising from the business of speculation) was not capable of being set off against the profits which it had earned against the business of futures and options since the latter did not constitute profits and gains of a speculative business.
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SAGUFA AHMED & ORS Vs. UPPER ASSAM PLYWOOD PRODUCTS PVT. LTD & ORS | to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. 20. It may be useful in this regard to make a reference to Section 10 of the General Clauses Act, 1897 which reads as follows: 10. Computation of time - (1) Where, by any 19 [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies. (2) This section applies also to all [Central Acts] and, Regulations made on or after the fourteenth day of January, 1887. 21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963 which reads as follows: - 4. Expiry of prescribed period when court is closed.— Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. 22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples: (i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24. (ii) Section 5 enables the admission of any appeal or application after the prescribed period. (iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability. 23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period. 24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows: 13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines 2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable. | 0[ds]13. Therefore, it is true, as contended by the appellants, that the period of limitation of 45 days prescribed in Section 421(3) would start running only from the date on which a copy of the order of the Tribunal is made available to the person aggrieved. It is also true that under Section 420(3) of the Act read with Rule 50, the appellants were entitled to be furnished with a certified copy of the order free of cost.14. Therefore if the appellants had chosen not to file a copy application, but to await the receipt of a free copy of the order in terms of Section 420(3) read with Rule 50, they would be perfectly justified in falling back on Section 421(3), for fixing the date from which limitation would start running. But the appellants in this case, chose to apply for a certified copy after 27 days of the pronouncement of the order in their presence and they now fall back upon Section 421(3).15. Despite the above factual position, we do not want to hold against the appellants, the fact that they waited from 25.10.2019 (the date of the order of NCLT) upto 21.11.2019, to make a copy application. But atleast from 19.12.2019, the date on which a certified copy was admittedly received by the counsel for the appellants, the period of limitation cannot be stopped from running.16. From 19.12.2019, the date on which the counsel for the appellants received the copy of the order, the appellants had a period of 45 days to file an appeal. This period expired on 02.02.2020.17. By virtue of the proviso to Section 421(3), the Appellate Tribunal was empowered to condone the delay upto a period of period of 45 days. This period of 45 days started running from 02.02.2020 and it expired even according to the appellants on 18.03.2020. The appellants did not file the appeal on or before 18.03.2020, but filed it on 20.07.2020. It is relevant to note that the lock down was imposed only on 24.03.2020 and there was no impediment for the appellants to file the appeal on or before 18.03.2020. To overcome this difficulty, the appellants rely upon the order of this Court dated 23.03.2020.10. Section 420(3) of the Companies Act, 2013 mandates the NCLT to send a copy of every order passed under Section 420(1) to all the parties concerned.11. Rule 50 of the National Company Law Tribunal Rules, 2016 also mandates the Registry of the NCLT to send a certified copy of the final order to the parties concerned free of cost. However, Rule 50 also enables the Registry of the NCLT to make available the certified copies with cost as per schedule of fees in all other cases (meaning thereby to persons who are not parties).12. Section 421(1) provides for a remedy of appeal to the Appellate Tribunal as against an order of NCLT. Sub-Section (3) of Section 421 prescribes the period of limitation for filing an appeal and the proviso thereunder confers a limited discretion upon the Appellate Tribunal to condone the delay.18. To get over their failure to file an appeal on or before 18.03.2020, the appellants rely upon the order of this Court dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020. It reads as follows:This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.Issue notice to all the Registrars General of the High Courts, returnable in four weeks.19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows:13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?14. Section 2(j) of the 1963 Act defines2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act.Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable.21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963 | 0 | 2,600 | 1,505 | ### Instruction:
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to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings. We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities. This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction. Issue notice to all the Registrars General of the High Courts, returnable in four weeks. 19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them. 20. It may be useful in this regard to make a reference to Section 10 of the General Clauses Act, 1897 which reads as follows: 10. Computation of time - (1) Where, by any 19 [Central Act] or Regulation made after the commencement of this Act, any act or proceeding is directed or allowed to be done or taken in any Court or office on a certain day or within a prescribed period, then, if the Court or office is closed on that day or the last day of the prescribed period, the act or proceeding shall be considered as done or taken in due time if it is done or taken on the next day afterwards on which the Court or office is open: Provided that nothing in this section shall apply to any act or proceeding to which the Indian Limitation Act, 1877 (15 of 1877), applies. (2) This section applies also to all [Central Acts] and, Regulations made on or after the fourteenth day of January, 1887. 21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963 which reads as follows: - 4. Expiry of prescribed period when court is closed.— Where the prescribed period for any suit, appeal or application expires on a day when the court is closed, the suit, appeal or application may be instituted, preferred or made on the day when the court reopens. Explanation.— A court shall be deemed to be closed on any day within the meaning of this section if during any part of its normal working hours it remains closed on that day. 22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation. We may see a few examples: (i) Section 3(1) makes every proceeding filed after the prescribed period, liable to be dismissed, subject however to the provisions in Sections 4 to 24. (ii) Section 5 enables the admission of any appeal or application after the prescribed period. (iii) Section 6 uses the expression prescribed period in relation to proceedings to be initiated by persons under legal disability. 23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period. 24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows: 13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words? 14. Section 2(j) of the 1963 Act defines 2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act. Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case. 25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable.
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there was no impediment for the appellants to file the appeal on or before 18.03.2020. To overcome this difficulty, the appellants rely upon the order of this Court dated 23.03.2020.10. Section 420(3) of the Companies Act, 2013 mandates the NCLT to send a copy of every order passed under Section 420(1) to all the parties concerned.11. Rule 50 of the National Company Law Tribunal Rules, 2016 also mandates the Registry of the NCLT to send a certified copy of the final order to the parties concerned free of cost. However, Rule 50 also enables the Registry of the NCLT to make available the certified copies with cost as per schedule of fees in all other cases (meaning thereby to persons who are not parties).12. Section 421(1) provides for a remedy of appeal to the Appellate Tribunal as against an order of NCLT. Sub-Section (3) of Section 421 prescribes the period of limitation for filing an appeal and the proviso thereunder confers a limited discretion upon the Appellate Tribunal to condone the delay.18. To get over their failure to file an appeal on or before 18.03.2020, the appellants rely upon the order of this Court dated 23.03.2020 in Suo Motu Writ Petition (Civil) No.3 of 2020. It reads as follows:This Court has taken Suo Motu cognizance of the situation arising out of the challenge faced by the country on account of Covid-19 Virus and resultant difficulties that may be faced by litigants across the country in filing their petitions/applications/suits/appeals/all other proceedings within the period of limitation prescribed under the general law of limitation or under Special Laws (both Central and/or State).To obviate such difficulties and to ensure that lawyers/litigants do not have to come physically to file such proceedings in respective Courts/Tribunals across the country including this Court, it is hereby ordered that a period of limitation in all such proceedings, irrespective of the limitation prescribed under the general law or Special Laws whether condonable or not shall stand extended w.e.f. 15th March 2020 till further order/s to be passed by this Court in present proceedings.We are exercising this power under Article 142 read with Article 141 of the Constitution of India and declare that this order is a binding order within the meaning of Article 141 on all Courts/Tribunals and authorities.This order may be brought to the notice of all High Courts for being communicated to all subordinate Courts/Tribunals within their respective jurisdiction.Issue notice to all the Registrars General of the High Courts, returnable in four weeks.19. But we do not think that the appellants can take refuge under the above order. What was extended by the above order of this Court was only the period of limitation and not the period upto which delay can be condoned in exercise of discretion conferred by the statute. The above order passed by this Court was intended to benefit vigilant litigants who were prevented due to the pandemic and the lockdown, from initiating proceedings within the period of limitation prescribed by general or special law. It is needless to point out that the law of limitation finds its root in two latin maxims, one of which is Vigilantibus Non Dormientibus Jura Subveniunt which means that the law will assist only those who are vigilant about their rights and not those who sleep over them.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.22. The words prescribed period appear in several Sections of the Limitation Act, 1963. Though these words prescribed period are not defined in Section 2 of the Limitation Act, 1963, the expression is used throughout, only to denote the period of limitation.23. Therefore, the expression prescribed period appearing in Section 4 cannot be construed to mean anything other than the period of limitation. Any period beyond the prescribed period, during which the Court or Tribunal has the discretion to allow a person to institute the proceedings, cannot be taken to be prescribed period.24. In Assam Urban Water Supply and Sewerage Board Versus Subash Projects and Marketing Limited (2012) 2 SCC 624 , this Court dealt with the meaning of the words prescribed period in paragraphs 13 and 14 as follows:13. The crucial words in Section 4 of the 1963 Act are prescribed period. What is the meaning of these words?14. Section 2(j) of the 1963 Act defines2(j) period of limitation which means the period of limitation prescribed for any suit, appeal or application by the Schedule, and prescribed period means the period of limitation computed in accordance with the provisions of this Act.Section 2(j) of the 1963 Act when read in the context of Section 34(3) of the 1996 Act, it becomes amply clear that the prescribed period for making an application for setting aside arbitral award is three months. The period of 30 days mentioned in proviso that follows sub-section (3) of Section 34 of the 1996 Act is not the period of limitation and, therefore, not prescribed period for the purposes of making the application for setting aside the arbitral award. The period of 30 days beyond three months which the court may extend on sufficient cause being shown under the proviso appended to sub-section (3) of Section 34 of the 1996 Act being not the period of limitation or, in other words, prescribed period, in our opinion, Section 4 of the 1963 Act is not, at all, attracted to the facts of the present case.25. Therefore, the appellants cannot claim the benefit of the order passed by this Court on 23.03.2020, for enlarging, even the period up to which delay can be condoned. The second contention is thus untenable.21. The principle forming the basis of Section 10(1) of the General Clauses Act, also finds a place in Section 4 of the Limitation Act, 1963
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State of Uttar Pradesh Vs. Yashrat N. Bhatt | BHARGAVA J. 1. This appeal brought up by special leave arises out of proceedings for assessment of agricultural income-tax under the U.P. Agricultural Income-tax Act, 1948 (U. P. Act No. III of 1949) (hereinafter referred to as " the Act "). The respondent was an agriculturist in the district of Agra, and was assessed to agricultural income-tax for the year 1358, Fasli. The income that came up for assessment included income derived from direct agricultural operations carried on by the respondent himself. In the return filed, the respondent had shown a gross receipt of Rs. 10, 899 as the proceeds of sale of all his agricultural produce and had claimed a sum of Rs. 5, 769-12-3 as expenses of cultivation. The agricultural income from this source had to be computed under section 6(2)(b) of the Act because of the option exercised by the respondent. The assessing authority did not accept the figures of income given by the respondent and held that the yield from the cultivation was of the value of Rs. 16, 421. In calculating the net income assessable, he allowed a margin of 50% for expenses, so that the sum allowed for expenses was Rs. 8, 210-8-0 which was deducted from the gross proceeds of sale of the produce. The State Government, through the Collector of Agra, filed an application for revision against this order of the assessing authority before the Board of Revision, Agricultural Income-tax, U.P., urging that the assessing authoritiy had erred in allowing a deduction of the sum of Rs. 8, 210-8-0 for expenses of cultivation against the sum of Rs. 5, 769-12-3 actually spent and claimed by the respondent in his return. The Revision Board, instead of deciding the question, expressed its opinion on it and referred the following question for the opinion of the Allahabad High Court " An assessee files a return showing his income from and the expenses of cultivation under section 6(2)(b) of the Agricultural Income-tax Act. His returns are rejected and the income is determined to be much higher than what has been shown in the returns. Is it open to the assessing authority in view of the increase in the income to allow a larger amount by way of expenses than what was shown in the returns, or is the statement made in the returns binding on the assessee ? "The High Court answered the question in favour of the assessee-respondent, and, consequently, the State Government has come up in this appeal to this court 2. Mr. C. B. Agarwala, on behalf of the State, urged that in view of rule 13 framed by the U. P. Government in exercise of the rule-making power under the Act, the assessing authority was incompetent to allow as expenses any amount other than the amounts actually paid by the assessee on account of agricultural operations metioned in that rule ; and since the respondent himself claimed that he actually spent the sum of Rs. 5, 769-12-3, there was no justification for the assessing authority to allow any amount in excess of this amount as expenses of cultivation. The computation of the agricultural income-tax from agricultural operations has to be made by the assessing authority in accordance with section 6(2)(b) of the Act. Under sub-clause (iv) of that provision, the assessing authority, in calculating the assessable agricultural income, has to allow " the expenses incurred in the previous year in raising the crop from which the agricultural income is derived, in making it fit for market and in transporting it to market, including the maintenance or hire of agricultural implements and cattle required for these purposes " 3. It is to be noticed that under this provision contained in the Act itself, there is no limitation that the expenses must be proved to be amounts of money actually paid for any specified operations. What this provision contemplates is that the assessing authority must determine the expenses incurred in raising the crop and on operations leading to its sale. Rule 13 framed by the U. P. Government can only be interpreted as laying down the principles according to which the assessing authority must ordinarily determine the expenses incurred for the purpose of deduction under section 6(2)(b)(iv) of the Act. These principles cannot, however, be held to fetter the power of the assessing authority to arrive at the correct figure of expenses incurred allowable under section 6(2)(b)(iv) of the Act. In the case before us, the expenses by the respondent had been claimed on the basis of a yield which, according to the assessing authority, was lower than the actual yield. The assessing authority, therefore, estimated the produce at a higher figure, and we do not see any reason why, when the assessing authority estimated that the produce was higher than that shown by the respondent, he could not also estimate that the expenses incurred in respect of that higher produce must have been larger than the amount actually shown by the respondent. The assessing authority, in thus estimating the allowable expenditure at a figure higher than the amount claimed by the respondent, had full justification in the circumstance that he had estimated the produce also at a higher figure. The answer returned by the High Court was, therefore, perfectly correct. | 0[ds]3. It is to be noticed that under this provision contained in the Act itself, there is no limitation that the expenses must be proved to be amounts of money actually paid for any specified operations. What this provision contemplates is that the assessing authority must determine the expenses incurred in raising the crop and on operations leading to its sale. Rule 13 framed by the U. P. Government can only be interpreted as laying down the principles according to which the assessing authority must ordinarily determine the expenses incurred for the purpose of deduction under section 6(2)(b)(iv) of the Act. These principles cannot, however, be held to fetter the power of the assessing authority to arrive at the correct figure of expenses incurred allowable under section 6(2)(b)(iv) of the Act. In the case before us, the expenses by the respondent had been claimed on the basis of a yield which, according to the assessing authority, was lower than the actual yield. The assessing authority, therefore, estimated the produce at a higher figure, and we do not see any reason why, when the assessing authority estimated that the produce was higher than that shown by the respondent, he could not also estimate that the expenses incurred in respect of that higher produce must have been larger than the amount actually shown by the respondent. The assessing authority, in thus estimating the allowable expenditure at a figure higher than the amount claimed by the respondent, had full justification in the circumstance that he had estimated the produce also at a higher figure. The answer returned by the High Court was, therefore, perfectly correct. | 0 | 1,003 | 319 | ### Instruction:
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BHARGAVA J. 1. This appeal brought up by special leave arises out of proceedings for assessment of agricultural income-tax under the U.P. Agricultural Income-tax Act, 1948 (U. P. Act No. III of 1949) (hereinafter referred to as " the Act "). The respondent was an agriculturist in the district of Agra, and was assessed to agricultural income-tax for the year 1358, Fasli. The income that came up for assessment included income derived from direct agricultural operations carried on by the respondent himself. In the return filed, the respondent had shown a gross receipt of Rs. 10, 899 as the proceeds of sale of all his agricultural produce and had claimed a sum of Rs. 5, 769-12-3 as expenses of cultivation. The agricultural income from this source had to be computed under section 6(2)(b) of the Act because of the option exercised by the respondent. The assessing authority did not accept the figures of income given by the respondent and held that the yield from the cultivation was of the value of Rs. 16, 421. In calculating the net income assessable, he allowed a margin of 50% for expenses, so that the sum allowed for expenses was Rs. 8, 210-8-0 which was deducted from the gross proceeds of sale of the produce. The State Government, through the Collector of Agra, filed an application for revision against this order of the assessing authority before the Board of Revision, Agricultural Income-tax, U.P., urging that the assessing authoritiy had erred in allowing a deduction of the sum of Rs. 8, 210-8-0 for expenses of cultivation against the sum of Rs. 5, 769-12-3 actually spent and claimed by the respondent in his return. The Revision Board, instead of deciding the question, expressed its opinion on it and referred the following question for the opinion of the Allahabad High Court " An assessee files a return showing his income from and the expenses of cultivation under section 6(2)(b) of the Agricultural Income-tax Act. His returns are rejected and the income is determined to be much higher than what has been shown in the returns. Is it open to the assessing authority in view of the increase in the income to allow a larger amount by way of expenses than what was shown in the returns, or is the statement made in the returns binding on the assessee ? "The High Court answered the question in favour of the assessee-respondent, and, consequently, the State Government has come up in this appeal to this court 2. Mr. C. B. Agarwala, on behalf of the State, urged that in view of rule 13 framed by the U. P. Government in exercise of the rule-making power under the Act, the assessing authority was incompetent to allow as expenses any amount other than the amounts actually paid by the assessee on account of agricultural operations metioned in that rule ; and since the respondent himself claimed that he actually spent the sum of Rs. 5, 769-12-3, there was no justification for the assessing authority to allow any amount in excess of this amount as expenses of cultivation. The computation of the agricultural income-tax from agricultural operations has to be made by the assessing authority in accordance with section 6(2)(b) of the Act. Under sub-clause (iv) of that provision, the assessing authority, in calculating the assessable agricultural income, has to allow " the expenses incurred in the previous year in raising the crop from which the agricultural income is derived, in making it fit for market and in transporting it to market, including the maintenance or hire of agricultural implements and cattle required for these purposes " 3. It is to be noticed that under this provision contained in the Act itself, there is no limitation that the expenses must be proved to be amounts of money actually paid for any specified operations. What this provision contemplates is that the assessing authority must determine the expenses incurred in raising the crop and on operations leading to its sale. Rule 13 framed by the U. P. Government can only be interpreted as laying down the principles according to which the assessing authority must ordinarily determine the expenses incurred for the purpose of deduction under section 6(2)(b)(iv) of the Act. These principles cannot, however, be held to fetter the power of the assessing authority to arrive at the correct figure of expenses incurred allowable under section 6(2)(b)(iv) of the Act. In the case before us, the expenses by the respondent had been claimed on the basis of a yield which, according to the assessing authority, was lower than the actual yield. The assessing authority, therefore, estimated the produce at a higher figure, and we do not see any reason why, when the assessing authority estimated that the produce was higher than that shown by the respondent, he could not also estimate that the expenses incurred in respect of that higher produce must have been larger than the amount actually shown by the respondent. The assessing authority, in thus estimating the allowable expenditure at a figure higher than the amount claimed by the respondent, had full justification in the circumstance that he had estimated the produce also at a higher figure. The answer returned by the High Court was, therefore, perfectly correct.
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3. It is to be noticed that under this provision contained in the Act itself, there is no limitation that the expenses must be proved to be amounts of money actually paid for any specified operations. What this provision contemplates is that the assessing authority must determine the expenses incurred in raising the crop and on operations leading to its sale. Rule 13 framed by the U. P. Government can only be interpreted as laying down the principles according to which the assessing authority must ordinarily determine the expenses incurred for the purpose of deduction under section 6(2)(b)(iv) of the Act. These principles cannot, however, be held to fetter the power of the assessing authority to arrive at the correct figure of expenses incurred allowable under section 6(2)(b)(iv) of the Act. In the case before us, the expenses by the respondent had been claimed on the basis of a yield which, according to the assessing authority, was lower than the actual yield. The assessing authority, therefore, estimated the produce at a higher figure, and we do not see any reason why, when the assessing authority estimated that the produce was higher than that shown by the respondent, he could not also estimate that the expenses incurred in respect of that higher produce must have been larger than the amount actually shown by the respondent. The assessing authority, in thus estimating the allowable expenditure at a figure higher than the amount claimed by the respondent, had full justification in the circumstance that he had estimated the produce also at a higher figure. The answer returned by the High Court was, therefore, perfectly correct.
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Hindustan Petroleum Corporation Ltd. & Anr Vs. Shyam Co Operative Housing Society & Ors | 1980 written by respondent 2, Smt. Nanki M. Malkani which is to the effectI had given the above flat to the then Esso Standard Inc. in December 1968 on leave licence basis. You as a successor-in-title of that company have been occupying the flat as licensee on the same terms and conditions. As you and your predecessor-in-title are reputed organisation I had given the flat for your officers use in the expectation that you will return the flat, when I require it for my own use. Besides this letter, the learned counsel for the petitioners drew our attention to a sheaf of letter exchanged between respondent 2 Smt. Nanki M. Malkani and the Hindustan Petroleum Corporation Ltd. showing that she accepted that there was subsisting agreement of leave and licence as late as March 24, 1980 which must by necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on February 1, 1973 which conferred on it the status of a protected tenant under Section 15-A of the Act. Indeed, the correspondence shows that it was at the behest of respondent 2 that every time on the expiry of a term of licence it came to be renewed from year to year till Section 15-A of the Bombay Rent Act was brought into force. Thereafter, the predecessor-in-interest of the petitioner-corporation was deemed to be her tenant under Section 15-A of the Bombay Rent Act. For instance, by letter dated April 9, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968. Again, by letter dated November 15, 1976, she wrote to the corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and charges. In view of these admission made in there letters and more particularly in the letter dated November 29, 1971 to Esso Eastern Inc. which reads as underAs the present agreement of leave and licence in regard to above flat is due to expire on November 30, 1973 that is two years from hence, you would like me to give you an undertaking of renewal of this agreement to justify the expenditure being incurred by you now. the findings of the appellate court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected license under Section 15-A of the Bombay Rent Act as on February 1, 1973. The findings of the appellate court to the contrary are therefore clearly erroneous. We are unable to sustain the view taken by the appellate court in not giving effect to sub-section (1) of Section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the appellate court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under Section 3 of the Acquisition Act. That Act came into force on March 15, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under Section 15-A of the Bombay Rent Act as admittedly, there was a subsisting licence as on February 1, 1973. The appellate court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. (sic) by a Certificate of Amendment dated December 22, 1970 vide a resolution passed by the Board of Directors of the corporation on December 15, 1970. In view of all this, the finding of the appellate court that the Hindustan Petroleum Corporation Ltd. was (sic not) entitled to the protection of Section 15-A of the Bombay Rent Act clearly borders on travesty and can hardly be sustained. 13. The appellate court was clearly in error in not appreciating that by Section 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from March 13, 1974. Under sub-section (1) of Section 5 thereof, the Central Government became the lessee or tenant, as the case may be. By sub-section (2) thereof, on the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a government company, w.e.f. March 15, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under Section 396(1) and (2) of the Companies Act, 1956 the undertaking of Lube India Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer the name of Esso Standard Refining Company of India Ltd. Stood change to Hindustan Petroleum Corporation Ltd. 14. In the premises, petitioner 1 Hindustan Petroleum Corporation Ltd. is clearly protected under Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of Section 91 of the Maharashtra Co-operative Societies Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court on O. N. Bhatnagar case and we reiterate the principles laid down therein. | 1[ds]the findings of the appellate court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected license under Sectionof the Bombay Rent Act as on February 1, 1973. The findings of the appellate court to the contrary are therefore clearly erroneous. We are unable to sustain the view taken by the appellate court in not giving effect to(1) of Section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the appellate court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under Section 3 of the Acquisition Act. That Act came into force on March 15, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under Sectionof the Bombay Rent Act as admittedly, there was a subsisting licence as on February 1, 1973. The appellate court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. (sic) by a Certificate of Amendment dated December 22, 1970 vide a resolution passed by the Board of Directors of the corporation on December 15, 1970. In view of all this, the finding of the appellate court that the Hindustan Petroleum Corporation Ltd. was (sic not) entitled to the protection of Sectionof the Bombay Rent Act clearly borders on travesty and can hardly beThe appellate court was clearly in error in not appreciating that by Section 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from March 13, 1974. Under(1) of Section 5 thereof, the Central Government became the lessee or tenant, as the case may be. By(2) thereof, on the expiry of the term of any lease or tenancy referred to in(1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a government company, w.e.f. March 15, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under Section 396(1) and (2) of the Companies Act, 1956 the undertaking of Lube India Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer the name of Esso Standard Refining Company of India Ltd. Stood change to Hindustan Petroleum CorporationIn the premises, petitioner 1 Hindustan Petroleum Corporation Ltd. is clearly protected under Sectionof the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of Section 91 of the MaharashtraSocieties Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court on O. N. Bhatnagar case and we reiterate the principles laid down therein | 1 | 5,196 | 674 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
1980 written by respondent 2, Smt. Nanki M. Malkani which is to the effectI had given the above flat to the then Esso Standard Inc. in December 1968 on leave licence basis. You as a successor-in-title of that company have been occupying the flat as licensee on the same terms and conditions. As you and your predecessor-in-title are reputed organisation I had given the flat for your officers use in the expectation that you will return the flat, when I require it for my own use. Besides this letter, the learned counsel for the petitioners drew our attention to a sheaf of letter exchanged between respondent 2 Smt. Nanki M. Malkani and the Hindustan Petroleum Corporation Ltd. showing that she accepted that there was subsisting agreement of leave and licence as late as March 24, 1980 which must by necessary implication, give rise to the inference as to the existence of such a licence between its predecessor Esso Eastern Inc. as on February 1, 1973 which conferred on it the status of a protected tenant under Section 15-A of the Act. Indeed, the correspondence shows that it was at the behest of respondent 2 that every time on the expiry of a term of licence it came to be renewed from year to year till Section 15-A of the Bombay Rent Act was brought into force. Thereafter, the predecessor-in-interest of the petitioner-corporation was deemed to be her tenant under Section 15-A of the Bombay Rent Act. For instance, by letter dated April 9, 1975 she wrote to the Hindustan Petroleum Corporation Ltd. that the above flat had been in its possession since December 1, 1968. Again, by letter dated November 15, 1976, she wrote to the corporation forwarding the original bill of the society in support of her demand for payment of enhanced taxes and charges. In view of these admission made in there letters and more particularly in the letter dated November 29, 1971 to Esso Eastern Inc. which reads as underAs the present agreement of leave and licence in regard to above flat is due to expire on November 30, 1973 that is two years from hence, you would like me to give you an undertaking of renewal of this agreement to justify the expenditure being incurred by you now. the findings of the appellate court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected license under Section 15-A of the Bombay Rent Act as on February 1, 1973. The findings of the appellate court to the contrary are therefore clearly erroneous. We are unable to sustain the view taken by the appellate court in not giving effect to sub-section (1) of Section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the appellate court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under Section 3 of the Acquisition Act. That Act came into force on March 15, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under Section 15-A of the Bombay Rent Act as admittedly, there was a subsisting licence as on February 1, 1973. The appellate court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. (sic) by a Certificate of Amendment dated December 22, 1970 vide a resolution passed by the Board of Directors of the corporation on December 15, 1970. In view of all this, the finding of the appellate court that the Hindustan Petroleum Corporation Ltd. was (sic not) entitled to the protection of Section 15-A of the Bombay Rent Act clearly borders on travesty and can hardly be sustained. 13. The appellate court was clearly in error in not appreciating that by Section 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from March 13, 1974. Under sub-section (1) of Section 5 thereof, the Central Government became the lessee or tenant, as the case may be. By sub-section (2) thereof, on the expiry of the term of any lease or tenancy referred to in sub-section (1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a government company, w.e.f. March 15, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under Section 396(1) and (2) of the Companies Act, 1956 the undertaking of Lube India Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer the name of Esso Standard Refining Company of India Ltd. Stood change to Hindustan Petroleum Corporation Ltd. 14. In the premises, petitioner 1 Hindustan Petroleum Corporation Ltd. is clearly protected under Section 15-A of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of Section 91 of the Maharashtra Co-operative Societies Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court on O. N. Bhatnagar case and we reiterate the principles laid down therein.
### Response:
1
### Explanation:
the findings of the appellate court are clearly erroneous. On the other hand, it stands proved that Esso Eastern Inc. had acquired the status of deemed tenant or protected license under Sectionof the Bombay Rent Act as on February 1, 1973. The findings of the appellate court to the contrary are therefore clearly erroneous. We are unable to sustain the view taken by the appellate court in not giving effect to(1) of Section 5 which vested the tenancy rights in relation to the flat in question on the Central Government as from appointed day. While it is true that a licence being personal is not capable of being transferred; there was no warrant for the assumption by the appellate court that the licence stood extinguished with the acquisition of the right, title and interest of Esso Eastern Inc. under Section 3 of the Acquisition Act. That Act came into force on March 15, 1974 and in the meanwhile, the licensee Esso Eastern Inc. had already acquired the status of deemed tenant under Sectionof the Bombay Rent Act as admittedly, there was a subsisting licence as on February 1, 1973. The appellate court has also failed to appreciate that the name of Esso Eastern Inc. was changed to Esso Eastern Inc. (sic) by a Certificate of Amendment dated December 22, 1970 vide a resolution passed by the Board of Directors of the corporation on December 15, 1970. In view of all this, the finding of the appellate court that the Hindustan Petroleum Corporation Ltd. was (sic not) entitled to the protection of Sectionof the Bombay Rent Act clearly borders on travesty and can hardly beThe appellate court was clearly in error in not appreciating that by Section 3 of the Acquisition Act, the right, title and interest of Esso Eastern Inc. in relation to its undertakings in India, shall stand transferred to, and shall vest in, the Central Government as from the appointed day i.e. as from March 13, 1974. Under(1) of Section 5 thereof, the Central Government became the lessee or tenant, as the case may be. By(2) thereof, on the expiry of the term of any lease or tenancy referred to in(1), such lease or tenancy shall, if so desired by the Central Government, be renewed on the same terms and conditions on which the lease or tenancy was held by Esso immediately before the appointed day. By a notification issued on the next date, the right, title and interest of the Central Government became vested in Esso Standard Refining Company of India Ltd., a government company, w.e.f. March 15, 1974. Furthermore, by reason of Lube India and Esso Standard Refining Company of India Ltd. Amalgamation Order, 1974 made by the Company Law Board under Section 396(1) and (2) of the Companies Act, 1956 the undertaking of Lube India Ltd. vested in Esso Standard Refining Company of India Ltd. and immediately upon such transfer the name of Esso Standard Refining Company of India Ltd. Stood change to Hindustan Petroleum CorporationIn the premises, petitioner 1 Hindustan Petroleum Corporation Ltd. is clearly protected under Sectionof the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. In that view of the matter, we do not think it necessary to deal with the contention as regards the applicability of Section 91 of the MaharashtraSocieties Act, 1960. All aspects arising out of the submissions as to the jurisdiction of the Registrar under Section 91(1) of the Act have already been considered by this Court on O. N. Bhatnagar case and we reiterate the principles laid down therein
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Maganlal Chhotalal Desai Vs. Chandrakant Motilal | is regulated by Section 20. That section reads:"Any amount paid on account of rent after the date o the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received orfrom his legal representative at any time within a period of six months from the date of payment and may without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord."7. The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.8. In Karamesy Kanji v. Velji Virji (1954) 56 Bom LR 619 the learned Chief Justice of the Bombay High Court repelled the tenants contention that for deduction of rent no period of limitation was provided by Section 20. He observed:"It seems to me clear on a plain and natural construction of the section itself that if a tenant could not recover any excess amount paid by him beyond six months from the date of payment and if such amounts became irrecoverable, it is difficult to understand how a tenant could deduct what he could not recover and what was irrecoverable in law. The same view of the law has been taken in a parallel piece of legislation in England in Bayley v. Walker, (1925) 1 KB 447. I see no reason to take a view different from that taken by the appellate court that the interpretation put by the English Court on a similar provision of law is the correct interpretation."In (1925) 1 KB 447 (supra) the tenant on discovering that he had overpaid considerable sums in excess of the standard rent stopped payment of rent retaining the amounts as they fell due by way of deduction under the provisions of S. 14, sub-section (1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920. He continued to deduct his rent after expiry of the period of limitation prescribed by Section 8, sub-section (2) of the Rent and Mortgage Interest Restrictions Act 1923. The landlord contended that the tenant had no right to so continue to deduct and that consequently his rent was in arrear and on that ground brought an action for possession. The question was whether the rent was in arrear or not. The matter turned on life constriction of Section 14 of the Act of 1920, and Section 8 of the Act of 1923. Section 14, sub-section (1) gave the tenant a general right of recovery of overpaid rent and the amount recoverable might without prejudice to any other mode of recovery be deducted by the tenant from any rent payable by him Section 8, sub-section (2), provided that"any sum which under sub-s. (1) of Section 14 of the principal Act (of 1920) is recoverable by the tenant. . ..... shall be recoverable at any time within six months from the date of payment but not afterwards or in the case of a payment made before the passing of this Act, at any time within six months from the passing of this Act but not afterwards."Salter, J., held that the period of limitation prescribed by Section 8 of the Act of 1923 applied to recovery by deduction as well as recovery by action. As the amount was incapable of recovery by action it could not be recovered by deduction. The rent was therefore in arrear and the landlord was entitled to recover possession on that ground. In Soharab Tavaria v. Jafferali (1956) 58 Bom LR 680 at pp. 687-88 a Division Bench of the Bombay High Court approved of these decisions.9. Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was in arrear.10. In these circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction. | 0[ds]According to the defendant he was compelled to pay Rs. 15,224/2 between March 14, 1950 and August 4, 1954. The courts below found that between those two dates he paid Rupees 14,169/2/- on account of rent from October 1, 1948 at Rs. 300 per month. From the plaint in Suit No. 34 of 1957 it appears that until March 14, 1957 the defendant did not make any other payment. As the High Court pointed out, no further payment was made by the defendant till the disposal of suit No. 5092 of 1955.6. Thus up to August 4, 1954 the defendant paid Rs. 14,169/2/- on account of rent due up to that date at Rs. 300 per month. The payments were in excess of the standard rent. He did not pay the rent falling due after August 4, 1954.The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was inthese circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction. | 0 | 2,583 | 584 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
is regulated by Section 20. That section reads:"Any amount paid on account of rent after the date o the coming into operation of this Act shall, except in so far as payment thereof is in accordance with the provisions of this Act, be recoverable by the tenant from the landlord to whom it was paid or on whose behalf it was received orfrom his legal representative at any time within a period of six months from the date of payment and may without prejudice to any other remedy for recovery, be deducted by such tenant from any rent payable by him to such landlord."7. The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.8. In Karamesy Kanji v. Velji Virji (1954) 56 Bom LR 619 the learned Chief Justice of the Bombay High Court repelled the tenants contention that for deduction of rent no period of limitation was provided by Section 20. He observed:"It seems to me clear on a plain and natural construction of the section itself that if a tenant could not recover any excess amount paid by him beyond six months from the date of payment and if such amounts became irrecoverable, it is difficult to understand how a tenant could deduct what he could not recover and what was irrecoverable in law. The same view of the law has been taken in a parallel piece of legislation in England in Bayley v. Walker, (1925) 1 KB 447. I see no reason to take a view different from that taken by the appellate court that the interpretation put by the English Court on a similar provision of law is the correct interpretation."In (1925) 1 KB 447 (supra) the tenant on discovering that he had overpaid considerable sums in excess of the standard rent stopped payment of rent retaining the amounts as they fell due by way of deduction under the provisions of S. 14, sub-section (1) of the Increase of Rent and Mortgage Interest (Restriction) Act, 1920. He continued to deduct his rent after expiry of the period of limitation prescribed by Section 8, sub-section (2) of the Rent and Mortgage Interest Restrictions Act 1923. The landlord contended that the tenant had no right to so continue to deduct and that consequently his rent was in arrear and on that ground brought an action for possession. The question was whether the rent was in arrear or not. The matter turned on life constriction of Section 14 of the Act of 1920, and Section 8 of the Act of 1923. Section 14, sub-section (1) gave the tenant a general right of recovery of overpaid rent and the amount recoverable might without prejudice to any other mode of recovery be deducted by the tenant from any rent payable by him Section 8, sub-section (2), provided that"any sum which under sub-s. (1) of Section 14 of the principal Act (of 1920) is recoverable by the tenant. . ..... shall be recoverable at any time within six months from the date of payment but not afterwards or in the case of a payment made before the passing of this Act, at any time within six months from the passing of this Act but not afterwards."Salter, J., held that the period of limitation prescribed by Section 8 of the Act of 1923 applied to recovery by deduction as well as recovery by action. As the amount was incapable of recovery by action it could not be recovered by deduction. The rent was therefore in arrear and the landlord was entitled to recover possession on that ground. In Soharab Tavaria v. Jafferali (1956) 58 Bom LR 680 at pp. 687-88 a Division Bench of the Bombay High Court approved of these decisions.9. Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was in arrear.10. In these circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction.
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0
### Explanation:
According to the defendant he was compelled to pay Rs. 15,224/2 between March 14, 1950 and August 4, 1954. The courts below found that between those two dates he paid Rupees 14,169/2/- on account of rent from October 1, 1948 at Rs. 300 per month. From the plaint in Suit No. 34 of 1957 it appears that until March 14, 1957 the defendant did not make any other payment. As the High Court pointed out, no further payment was made by the defendant till the disposal of suit No. 5092 of 1955.6. Thus up to August 4, 1954 the defendant paid Rs. 14,169/2/- on account of rent due up to that date at Rs. 300 per month. The payments were in excess of the standard rent. He did not pay the rent falling due after August 4, 1954.The section gives the tenant a general right of recovery of the overpaid rent within six months from the date of payment. Without prejudice to any other mode of recovery, he may deduct the overpayment from any rent payable by him to the landlord. Deduction is one mode of recovery.If the amount is incapable of recovery because of the bar of limitation, it cannot be recovered by deduction. In other words, the right of recovery by deduction is barred at the same time as the right of recovery by suit. If the tenant seeks recovery of the overpaid amount he must bring the suit or make the deduction within six months.Now the right of recovery of the excess rent paid before August 4, 1954 became barred on and after February 4, 1955. Within that period the defendant took no steps for recovery of the amount by filing a suit or making a deduction. As the claim for recovery of the amount became barred after February 4, 1955, he could not thereafter deduct it from the rent falling due. As a matter of fact, he did not deduct it from rent at any time. Instead of making any deduction he filed a suit for its recovery. The overpayments cannot now be deducted from or adjusted against the rent falling due since August 4, 1954. It follows that the rent was inthese circumstances, the defendant could not claim protection of Section 12 (1) of the Rent Act.During the pendency of the suit he did not pay the standard rent due from him from August 4, 1954 nor was he ready or willing to pay it. Instead of showing his readiness and willingness to pay the rent due he claimed that he was not liable to pay any amount at all.11. Likewise he could not claim the protection under Section 12 (3) (b). Before the first hearing of the suit on December 26, 1957 or any other date fixed by the trial court he did not pay or tender in court the standard rent then due from him. Nor did he thereafter continue to pay or deposit in court such rent till the suit was finally decided.It follows that the defendant cannot claim protection from eviction under the Rent Act. The High Court therefore rightly decreed the suit for eviction.
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Mansuklal Keshavjibhai Patel Vs. United India Insurance Co. Ltd. & Others | 1. This appeal is directed against the judgment of the learned Single Judge of the Gujarat High Court whereby he allowed the appeal filed by respondent No. 1 under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act), set aside award dated 24.10.1997 passed by Motor Accident Claims Tribunal (Main), Nadiad (for short, the Tribunal) in MACP No. 215/1987 and declared that liability of respondent No. 1 would be limited to Rs. 30,000/- and the said respondent is entitled to refund of the amount paid in excess of Rs. 30,000/- with interest at the rate of 12% per annum and proportionate costs. In an accident which occurred on 23.10.1986 involving the taxi owned by respondent No. 3, the appellant suffered grievous injuries. He filed claim under Section 166 of the Act for award of compensation to the tune of Rs. 2,50,000/- by asserting that the accident was caused due to rash and negligent driving of the taxi by respondent No. 2. He further pleaded that due to accident he had suffered grievous injuries and was treated for compound fracture in the right hand and as a result of that he suffered permanent disability. Respondent Nos. 2 and 3 contested the claim and denied the allegation of rash and negligent driving of taxi. They pleaded that the accident occurred when a truck dashed on the right side of the taxi and the appellants hand was injured because it was kept outside the window. Respondent No. 1 also contested the claim and pleaded that it was not liable because the driver was not holding valid driving licence. 2. On the pleadings of the parties the Tribunal framed the following issued: (1) Whether the applicant proves that he sustained injuries because of the rash and negligent driving of the driver of the vehicle involved in the accident? (2) Whether the applicant is entitled to compensation? If yes, what amount and from whom? (3) What award and order? 3. After considering the evidence produced by the parties the Tribunal held that the accident was caused due to rash and negligent driving of the taxi. The Tribunal then considered the issue relating to quantum of compensation and held that the appellant is entitled to total amount of Rs. 1,46,000/- with running interest at the rate of 12% per annum from the date of filing the claim petition with proportionate costs. The Tribunal ordained payment of compensation by respondent Nos. 1 to 3. 4. The appeal filed by respondent No. 1 was allowed by the learned Single Judge by relying upon Section 95(2) of the Act and the judgment of this Court in New India Assurance Company Ltd. v. C.M. Jaya and Others, I (2002) SLT 290=95 (2002) DLT 500 (SC)=I (2002) ACC 299 (SC)=(2002) 2 SCC 278. 5. Mr. Haresh Raichura, learned Counsel for the appellant argued that in view of the law laid down by the Constitution Bench in New India Assurance Company Ltd. v. C.M. Jaya and Others (supra) the liability of respondent No. 1 may be limited, but the learned Single Judge of the High Court committed serious error by giving an option to the said respondent to recover the amount from the appellant and/or respondent No. 3. He submitted that the appellant cannot be made to refund the amount paid after a gap of 24 years. 6. Learned Counsel for respondent No. 1 fairly stated that his client should be given liberty to recover the excess amount from respondent No. 3. 7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant. | 1[ds]7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant. | 1 | 807 | 139 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
1. This appeal is directed against the judgment of the learned Single Judge of the Gujarat High Court whereby he allowed the appeal filed by respondent No. 1 under Section 173 of the Motor Vehicles Act, 1988 (for short, the Act), set aside award dated 24.10.1997 passed by Motor Accident Claims Tribunal (Main), Nadiad (for short, the Tribunal) in MACP No. 215/1987 and declared that liability of respondent No. 1 would be limited to Rs. 30,000/- and the said respondent is entitled to refund of the amount paid in excess of Rs. 30,000/- with interest at the rate of 12% per annum and proportionate costs. In an accident which occurred on 23.10.1986 involving the taxi owned by respondent No. 3, the appellant suffered grievous injuries. He filed claim under Section 166 of the Act for award of compensation to the tune of Rs. 2,50,000/- by asserting that the accident was caused due to rash and negligent driving of the taxi by respondent No. 2. He further pleaded that due to accident he had suffered grievous injuries and was treated for compound fracture in the right hand and as a result of that he suffered permanent disability. Respondent Nos. 2 and 3 contested the claim and denied the allegation of rash and negligent driving of taxi. They pleaded that the accident occurred when a truck dashed on the right side of the taxi and the appellants hand was injured because it was kept outside the window. Respondent No. 1 also contested the claim and pleaded that it was not liable because the driver was not holding valid driving licence. 2. On the pleadings of the parties the Tribunal framed the following issued: (1) Whether the applicant proves that he sustained injuries because of the rash and negligent driving of the driver of the vehicle involved in the accident? (2) Whether the applicant is entitled to compensation? If yes, what amount and from whom? (3) What award and order? 3. After considering the evidence produced by the parties the Tribunal held that the accident was caused due to rash and negligent driving of the taxi. The Tribunal then considered the issue relating to quantum of compensation and held that the appellant is entitled to total amount of Rs. 1,46,000/- with running interest at the rate of 12% per annum from the date of filing the claim petition with proportionate costs. The Tribunal ordained payment of compensation by respondent Nos. 1 to 3. 4. The appeal filed by respondent No. 1 was allowed by the learned Single Judge by relying upon Section 95(2) of the Act and the judgment of this Court in New India Assurance Company Ltd. v. C.M. Jaya and Others, I (2002) SLT 290=95 (2002) DLT 500 (SC)=I (2002) ACC 299 (SC)=(2002) 2 SCC 278. 5. Mr. Haresh Raichura, learned Counsel for the appellant argued that in view of the law laid down by the Constitution Bench in New India Assurance Company Ltd. v. C.M. Jaya and Others (supra) the liability of respondent No. 1 may be limited, but the learned Single Judge of the High Court committed serious error by giving an option to the said respondent to recover the amount from the appellant and/or respondent No. 3. He submitted that the appellant cannot be made to refund the amount paid after a gap of 24 years. 6. Learned Counsel for respondent No. 1 fairly stated that his client should be given liberty to recover the excess amount from respondent No. 3. 7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant.
### Response:
1
### Explanation:
7. We have considered the submissions of the learned Counsel for the parties and are convinced that the learned Single Judge committed serious error by not specifying the person from whom respondent No.1 may recover the amount paid to the appellant. It is not in dispute that respondent No. 3 had not questioned the award of the Tribunal by filing an appeal under Section 173 of the Act. Therefore, he shall be deemed to have admitted his liability and the mere fact that the Tribunal had fastened liability to pay compensation on respondent No. 1, along with respondent Nos. 2 and 3, the owner cannot be absolved of the responsibility to refund the excess amount paid by respondent No. 1 to the appellant.
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Ramlal Onkarmal Firm Vs. Mohanlal Jogani Rice And Atta Mills | Office at Calcutta in payment of the cheque for Rs. 9,461-4-0 drawn on the Tripura Modern Bank, Sibsagar which the appellants had endorsed in favour of the respondents in satisfaction of the amount due upon that cheque and that, therefore, the subsequent dishonour of the draft would not revive the appellants liability to pay Rs. 9,455 to the respondents. The other ground was that the appellants were discharged from liability because of the laches of the respondents in not presenting the draft for encashment within reasonable time of the drawing of that draft. My learned brother has rested his decision on the second ground. In my view, however, it is not necessary to express any opinion upon the second ground as the first ground urge by Mr. Chatterjee is a good answer to the respondents claim.11. It is a well accepted rule of English law, which has been applied in this country also, that when a debt becomes due the debtor must tender to the creditor the exact amount of the debt in cash or other legal tender and that where a cheque is tendered by the debtor to the creditor the payment may be absolute or conditional, the strong presumption being in favour of conditional payment. (see Chalmers on Bills of Exchange, p. 301, 12th Edn.).Therefore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must have accepted it as conditional payment. The respondents bank, instead of collecting cash from the Tripura Modern Bank Ltd., Sibsagar, sought to collect the amount by draft. The reason for this given by Debendra Chandra Mazumdar, P. W. 3, who was Assistant Accountant at the Gauhati Branch of the Calcutta Commercial Bank Ltd. at the relevant time was that the Bank usually collected money from other banks by draft. There is nothing to indicate in his, evidence that this was the prevailing practice in the Banks carrying on business in Assam. According to him, the respondents bank asked for a draft payable at Gauhati but the Tripura Modern Bank Ltd. sent one payable at Calcutta. The respondents bank, however, accepted the draft and sent it by registered post to Calcutta for collection. Some time thereafter the respondents bank closed business and the demand draft was returned undelivered. The respondents Bank made over the draft to the respondents. It may be mentioned that though the Tripura Modern Bank Ltd., had branch at Gauhati the respondents Bank did not object to a draft payable at Calcutta thinking that the money due thereunder could be collected earlier from the Calcutta branch of the Tripura Modern Bank. The matter. however, did not rest there. After the respondents Bank went into liquidation the respondents wrote a letter on November 19, 1948 to the Agent of the Tripura Modern Bank Ltd., Calcutta saying that the demand draft belonged to them and not to the Calcutta Commercial Bank Ltd., who were only acting as their agents for collection purposes and that the amount for which the draft was drawn should be paid to them and not to the Calcutta Commercial Bank or any one on its behalf. This letter clearly shows that the respondents accepted the draft in full payment of the amount due to them under the cheque which the appellant had endorsed their favour. Thus, though the cheque endorsed by the appellants in favour of the respondents was only a conditional payment of the amount for which the cheque was drawn the respondents by accepting the demand draft drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Branch must be deemed to have accepted that draft as a legal tender or as absolute payment of the amount payable under the cheque endorsed in their favour by the appellant. Their rights thereafter would rest only upon the demand draft and not upon the original debt which the appellant owed to them. It may be mentioned that the Tripura Modern Bank had not gone into liquidation till a month later and would, as stated by Debendra Chandra Mazumdar, P. W. 3, have been able to meet the draft had it been presented to its Calcutta Branch within reasonable time from the date on which it was drawn. It is because the respondents Bank went into liquidation just about the time the registered letter containing the draft was sent to Calcutta and no one took delivery of it that the draft could not be presented to the Calcutta Branch of the Tripura Modern Bank. The remedy of the respondents, therefore, could be against their own bank, that is, the Calcutta Commercial Bank or against the Tripura Modern Bank but certainly not against the appellant. Reliance, however, was placed by Mr. S. C. Nath for the respondents upon the letter dated September 18, 1949 written by the appellant to the respondents in which the appellant wrote as follows:"and-received your letter. You wrote that the payment of Rs. 9,461-4-0 had not been received. Please get the cheque back. We have written to the drawer, which please note."12. According to learned counsel, therefore, the appellant must be deemed to have accepted its liability upon the cheque which it had endorsed in favour of the respondents. There is no reference in this letter to the demand draft and it is quite clear, therefore, what the appellant said was in ignorance of the foot that the respondents bank had accepted a demand draft in payment of the cheque, it may be mentioned that the Tripura Modern Bank, Sibsagar had actually debited the account of the drawer of the cheque with the amount for which the cheque had been drawn. The cheque had thus been honoured by them. But instead of paying cash they issued a demand draft at the instance of the respondents bank. This letter, therefore, does not improve matters for the respondents. | 1[ds]6. The High Court was in error in holding that the failure to obtain payment of the draft was not due to the laches of the respondents collecting agents. In one part of the judgment, the High Court wrongly assumed contrary to fact, that the Tripura Modern Bank had stopped business on September 16, 1948 and, therefore, the draft could not be cashed on presentation, whereas, in fact, the Tripura Modern Bank had stopped business a month later on October 16, 1948. Moreover, the High Court wrongly, assumed that the appellants did not suffer any loss on account of the delay in the presentation of the draft. There is clear evidence on the record that the draft would have been cashed, if it had been presented for payment before October 16, 1948.Now, in the instant case, the respondents accepted from their debtors, the appellants, a cheque drawn by a third party, on the Tripura Modern Bank and endorsed by the appellants. The respondents through their collecting agents, the Calcutta Commercial Bank, presented the cheque for collection to the Tripura Modern Bank, and instead of obtaining cash payment, received a draft drawn by the Sibsagar Branch of the Tripura Modern Bank on its Head Office. Having accepted this draft in course of collection of the cheque, the respondents vis-a-vis the appellants were in no better position than they, would have been, if they had accepted the draft from the appellants directly as conditional payment of the cheque. In the circumstances, the respondents owed a duty to the appellants to present the draft for payment within a reasonable time. The draft could be presented for payment at any time during the period of three months from the date of its issue. Instead of presenting the draft for payment, the respondents collecting agents kept it in their hands, and made no attempts to cash it. P. w. 3, an employee of the Calcutta Commercial Bank, said that the draft was sent by the Gauhati office of the Bank to its Head Office by registered post, but the Head Office had closed its business and the draft came back to the Gauhati office undelivered. The closure of the business of the collecting agents was not a lawful excuse for not obtaining delivery of the draft and not presenting it for payment within a reasonable time. P. W. 3 admitted that had the draft been presented for payment to the Tripura Modern Bank before October 16, 1948, it would have been paid on presentation, and the money could not be realised only because the Calcutta Commercial Bank had closed in the meantime. The Tripura Modern Bank closed its business on October 16, 1948. Because of its inability, to pay its debts, the Tripura Modern Bank is now working under a scheme of arrangement. The failure of the respondents and their agent to cash the draft within a reasonable time altered the position of the appellants for the worse, and caused prejudice to them. In the altered the respondents must be regarded as having kept the draft in absolute payment of the cheque. The cheque must be treated as duly paid and consequently, the original debt stood discharged.Mr. Chatterjee also contended that the respondents collecting agents must be deemed to have accepted the demand draft on September 14, 1948 as absolute payment of the cheque, and that the cheque was, in the eye of law, paid and discharged on that date. There is a lengthy discussion on this point in the judgment of the High Court, but we do not think it necessary to decide this question. | 1 | 2,961 | 669 | ### 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:
Office at Calcutta in payment of the cheque for Rs. 9,461-4-0 drawn on the Tripura Modern Bank, Sibsagar which the appellants had endorsed in favour of the respondents in satisfaction of the amount due upon that cheque and that, therefore, the subsequent dishonour of the draft would not revive the appellants liability to pay Rs. 9,455 to the respondents. The other ground was that the appellants were discharged from liability because of the laches of the respondents in not presenting the draft for encashment within reasonable time of the drawing of that draft. My learned brother has rested his decision on the second ground. In my view, however, it is not necessary to express any opinion upon the second ground as the first ground urge by Mr. Chatterjee is a good answer to the respondents claim.11. It is a well accepted rule of English law, which has been applied in this country also, that when a debt becomes due the debtor must tender to the creditor the exact amount of the debt in cash or other legal tender and that where a cheque is tendered by the debtor to the creditor the payment may be absolute or conditional, the strong presumption being in favour of conditional payment. (see Chalmers on Bills of Exchange, p. 301, 12th Edn.).Therefore, when the respondents accepted the cheque drawn by Messrs Nathuram Jaidayal of Sibsagar in favour of the appellants and endorsed by the appellants in their favour and sent it to the Calcutta Commercial Bank Ltd., Gauhati Branch for collection they must have accepted it as conditional payment. The respondents bank, instead of collecting cash from the Tripura Modern Bank Ltd., Sibsagar, sought to collect the amount by draft. The reason for this given by Debendra Chandra Mazumdar, P. W. 3, who was Assistant Accountant at the Gauhati Branch of the Calcutta Commercial Bank Ltd. at the relevant time was that the Bank usually collected money from other banks by draft. There is nothing to indicate in his, evidence that this was the prevailing practice in the Banks carrying on business in Assam. According to him, the respondents bank asked for a draft payable at Gauhati but the Tripura Modern Bank Ltd. sent one payable at Calcutta. The respondents bank, however, accepted the draft and sent it by registered post to Calcutta for collection. Some time thereafter the respondents bank closed business and the demand draft was returned undelivered. The respondents Bank made over the draft to the respondents. It may be mentioned that though the Tripura Modern Bank Ltd., had branch at Gauhati the respondents Bank did not object to a draft payable at Calcutta thinking that the money due thereunder could be collected earlier from the Calcutta branch of the Tripura Modern Bank. The matter. however, did not rest there. After the respondents Bank went into liquidation the respondents wrote a letter on November 19, 1948 to the Agent of the Tripura Modern Bank Ltd., Calcutta saying that the demand draft belonged to them and not to the Calcutta Commercial Bank Ltd., who were only acting as their agents for collection purposes and that the amount for which the draft was drawn should be paid to them and not to the Calcutta Commercial Bank or any one on its behalf. This letter clearly shows that the respondents accepted the draft in full payment of the amount due to them under the cheque which the appellant had endorsed their favour. Thus, though the cheque endorsed by the appellants in favour of the respondents was only a conditional payment of the amount for which the cheque was drawn the respondents by accepting the demand draft drawn by the Tripura Modern Bank, Sibsagar on its Calcutta Branch must be deemed to have accepted that draft as a legal tender or as absolute payment of the amount payable under the cheque endorsed in their favour by the appellant. Their rights thereafter would rest only upon the demand draft and not upon the original debt which the appellant owed to them. It may be mentioned that the Tripura Modern Bank had not gone into liquidation till a month later and would, as stated by Debendra Chandra Mazumdar, P. W. 3, have been able to meet the draft had it been presented to its Calcutta Branch within reasonable time from the date on which it was drawn. It is because the respondents Bank went into liquidation just about the time the registered letter containing the draft was sent to Calcutta and no one took delivery of it that the draft could not be presented to the Calcutta Branch of the Tripura Modern Bank. The remedy of the respondents, therefore, could be against their own bank, that is, the Calcutta Commercial Bank or against the Tripura Modern Bank but certainly not against the appellant. Reliance, however, was placed by Mr. S. C. Nath for the respondents upon the letter dated September 18, 1949 written by the appellant to the respondents in which the appellant wrote as follows:"and-received your letter. You wrote that the payment of Rs. 9,461-4-0 had not been received. Please get the cheque back. We have written to the drawer, which please note."12. According to learned counsel, therefore, the appellant must be deemed to have accepted its liability upon the cheque which it had endorsed in favour of the respondents. There is no reference in this letter to the demand draft and it is quite clear, therefore, what the appellant said was in ignorance of the foot that the respondents bank had accepted a demand draft in payment of the cheque, it may be mentioned that the Tripura Modern Bank, Sibsagar had actually debited the account of the drawer of the cheque with the amount for which the cheque had been drawn. The cheque had thus been honoured by them. But instead of paying cash they issued a demand draft at the instance of the respondents bank. This letter, therefore, does not improve matters for the respondents.
### Response:
1
### Explanation:
6. The High Court was in error in holding that the failure to obtain payment of the draft was not due to the laches of the respondents collecting agents. In one part of the judgment, the High Court wrongly assumed contrary to fact, that the Tripura Modern Bank had stopped business on September 16, 1948 and, therefore, the draft could not be cashed on presentation, whereas, in fact, the Tripura Modern Bank had stopped business a month later on October 16, 1948. Moreover, the High Court wrongly, assumed that the appellants did not suffer any loss on account of the delay in the presentation of the draft. There is clear evidence on the record that the draft would have been cashed, if it had been presented for payment before October 16, 1948.Now, in the instant case, the respondents accepted from their debtors, the appellants, a cheque drawn by a third party, on the Tripura Modern Bank and endorsed by the appellants. The respondents through their collecting agents, the Calcutta Commercial Bank, presented the cheque for collection to the Tripura Modern Bank, and instead of obtaining cash payment, received a draft drawn by the Sibsagar Branch of the Tripura Modern Bank on its Head Office. Having accepted this draft in course of collection of the cheque, the respondents vis-a-vis the appellants were in no better position than they, would have been, if they had accepted the draft from the appellants directly as conditional payment of the cheque. In the circumstances, the respondents owed a duty to the appellants to present the draft for payment within a reasonable time. The draft could be presented for payment at any time during the period of three months from the date of its issue. Instead of presenting the draft for payment, the respondents collecting agents kept it in their hands, and made no attempts to cash it. P. w. 3, an employee of the Calcutta Commercial Bank, said that the draft was sent by the Gauhati office of the Bank to its Head Office by registered post, but the Head Office had closed its business and the draft came back to the Gauhati office undelivered. The closure of the business of the collecting agents was not a lawful excuse for not obtaining delivery of the draft and not presenting it for payment within a reasonable time. P. W. 3 admitted that had the draft been presented for payment to the Tripura Modern Bank before October 16, 1948, it would have been paid on presentation, and the money could not be realised only because the Calcutta Commercial Bank had closed in the meantime. The Tripura Modern Bank closed its business on October 16, 1948. Because of its inability, to pay its debts, the Tripura Modern Bank is now working under a scheme of arrangement. The failure of the respondents and their agent to cash the draft within a reasonable time altered the position of the appellants for the worse, and caused prejudice to them. In the altered the respondents must be regarded as having kept the draft in absolute payment of the cheque. The cheque must be treated as duly paid and consequently, the original debt stood discharged.Mr. Chatterjee also contended that the respondents collecting agents must be deemed to have accepted the demand draft on September 14, 1948 as absolute payment of the cheque, and that the cheque was, in the eye of law, paid and discharged on that date. There is a lengthy discussion on this point in the judgment of the High Court, but we do not think it necessary to decide this question.
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M/S. I.D.L. Chemical Ltd Vs. State Of Orissa | the seller, would not change the nature of the sale. It was further observed that if movement of goods delivered to the buyer was occasioned by the contract of sale, the mere fact that the actual sales pursuant to the contract were effected subsequently is immaterial. Their Lordships observed as follows: "If there is a conceivable link between a contract of sale and the movement of goods from one State to the other in order to discharge the obligation under the contract of sale, the inter-position of an agent of the seller who may temporarily intercept the movement ought not to alter the inter-State character of the sale." 9. In Sahney Steel and Press Works Limited & Anr. v. Commercial Tax Officer & Ors. [(1985) 4 SCC 173] it was observed that movement of the goods from Hyderabad to the branch office was only for the purpose of enabling the sale by the branch office and was not in the course of fulfillment of the contract of sale. But this was negatived by this Court. This Court observed that it appears that the movement from the very beginning from Hyderabad all the way until delivery is received by the buyer is an inter-State movement. Relying on an earlier decision in English Electric Company of India Ltd. v. Deputy Commercial Tax Officer [(1976) 4 SCC 460, their Lordships held that it amounts to inter-State sale. Their Lordships observed as follows: "What is decisive is whether the sale is one which occasions the movement of goods from one State to another. It was also pointed out that the branches had no independent and separate entity, that they were merely different agencies, and even where a branch office sold the goods to the buyer it was a sale between the Company and the buyer. It is true that in that case the goods, on manufacture at the Madras branch factory, were directly dispatched to the Bombay buyer at his risk and all prices were shown F.O.R. Madras, and the goods were delivered to the Bombay buyer at Bhandup through clearing agents. In the instant case, the goods were dispatched by the branch office situated outside the State of Andhra Pradesh to the buyer and not by the registered office at Hyderabad. In our opinion, that makes no difference at all. The manufacture of the goods at the Hyderabad factory and their movement thereafter from Hyderabad to the branch office outside the State was an incident of the contract entered into with the buyer, for it was intended that the same goods should be delivered by the branch office to the buyer. There was no break in the movement of the goods. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It would have been a different matter if the particular goods had been dispatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without reference to any order placed by the buyer. In such a case if the goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer. The movement of the goods from the registered office at Hyderabad to the branch office outside the State cannot be regarded as an incident of the sale made to the buyer." This case clinches the issue and we need not multiply other cases as the facts of this case are nearer home. 10. Mr.Ganesh, learned senior counsel for the appellant has also referred to various decisions which have peculiar facts but the case of Sahney Steel & Press Works Ltd. (supra) is nearer home and therefore it will not be necessary to multiply each case and unnecessarily overburden the judgment. Suffice it to say that one case which supports the view, which we have taken and which has been relied on by the High Court also. Another case, which is on the same line is Indian Oil Corporation Ltd. & Anr. V. Union of India & Ors. [1980 (Supp) SCC 426] . Similar is the case in Union of India & Anr. V. M/s. K.G. Khosla & Co. Ltd. & Ors. [(1979) 2 SCC 242] . Mr.Ganesh, learned senior counsel for the appellant has also submitted that the Court should also look at as to how the parties have understood the agreement and in support thereof placed reliance on a decision of this Court in The Godhra Electricity Co. Ltd. & Anr. V. The State of Gujarat & Anr. [(1975) 1 SCC 199] and also submitted that the finding of fact recorded by the Tribunal should not have been interfered with by the High Court and also invited our attention to a decision of this Court in Ashok Leyland Ltd. v. State of T.N. & Anr. [(2004) 3 SCC 1] in support of his contention that the goods were not subjected to inter-State sale. It is not necessary to go into all these facts as we have already held above on factual aspect that the goods which were triggered from Rourkela and sold to the subsidiaries of the CIL through the appellants consignment agents were essentially meant to be sold to the subsidiaries of the CIL and the goods primarily triggered from Rourkela and were sent to the subsidiaries of the CIL amounted to inter-State sale and the view taken by the Division Bench of the Orissa High Court is correct. 11. Before we part with this case we may observe that the authorities will go into the factual aspects and find out how much of the quantity of the goods were sent to other undertakings other than the subsidiaries of CIL and assess tax on the supplies which were made to the subsidiaries of CIL as inter-State sale.12. As a result of our above discussion, we | 0[ds]It is not necessary to go into all these facts as we have already held above on factual aspect that the goods which were triggered from Rourkela and sold to the subsidiaries of the CIL through the appellants consignment agents were essentially meant to be sold to the subsidiaries of the CIL and the goods primarily triggered from Rourkela and were sent to the subsidiaries of the CIL amounted to inter-State sale and the view taken by the Division Bench of the Orissa High Court iswe part with this case we may observe that the authorities will go into the factual aspects and find out how much of the quantity of the goods were sent to other undertakings other than the subsidiaries of CIL and assess tax on the supplies which were made to the subsidiaries of CIL as inter-State sale. | 0 | 4,647 | 146 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
the seller, would not change the nature of the sale. It was further observed that if movement of goods delivered to the buyer was occasioned by the contract of sale, the mere fact that the actual sales pursuant to the contract were effected subsequently is immaterial. Their Lordships observed as follows: "If there is a conceivable link between a contract of sale and the movement of goods from one State to the other in order to discharge the obligation under the contract of sale, the inter-position of an agent of the seller who may temporarily intercept the movement ought not to alter the inter-State character of the sale." 9. In Sahney Steel and Press Works Limited & Anr. v. Commercial Tax Officer & Ors. [(1985) 4 SCC 173] it was observed that movement of the goods from Hyderabad to the branch office was only for the purpose of enabling the sale by the branch office and was not in the course of fulfillment of the contract of sale. But this was negatived by this Court. This Court observed that it appears that the movement from the very beginning from Hyderabad all the way until delivery is received by the buyer is an inter-State movement. Relying on an earlier decision in English Electric Company of India Ltd. v. Deputy Commercial Tax Officer [(1976) 4 SCC 460, their Lordships held that it amounts to inter-State sale. Their Lordships observed as follows: "What is decisive is whether the sale is one which occasions the movement of goods from one State to another. It was also pointed out that the branches had no independent and separate entity, that they were merely different agencies, and even where a branch office sold the goods to the buyer it was a sale between the Company and the buyer. It is true that in that case the goods, on manufacture at the Madras branch factory, were directly dispatched to the Bombay buyer at his risk and all prices were shown F.O.R. Madras, and the goods were delivered to the Bombay buyer at Bhandup through clearing agents. In the instant case, the goods were dispatched by the branch office situated outside the State of Andhra Pradesh to the buyer and not by the registered office at Hyderabad. In our opinion, that makes no difference at all. The manufacture of the goods at the Hyderabad factory and their movement thereafter from Hyderabad to the branch office outside the State was an incident of the contract entered into with the buyer, for it was intended that the same goods should be delivered by the branch office to the buyer. There was no break in the movement of the goods. The branch office merely acted as a conduit through which the goods passed on their way to the buyer. It would have been a different matter if the particular goods had been dispatched by the registered office at Hyderabad to the branch office outside the State for sale in the open market and without reference to any order placed by the buyer. In such a case if the goods are purchased from the branch office, it is not a sale under which the goods commenced their movement from Hyderabad. It is a sale where the goods moved merely from the branch office to the buyer. The movement of the goods from the registered office at Hyderabad to the branch office outside the State cannot be regarded as an incident of the sale made to the buyer." This case clinches the issue and we need not multiply other cases as the facts of this case are nearer home. 10. Mr.Ganesh, learned senior counsel for the appellant has also referred to various decisions which have peculiar facts but the case of Sahney Steel & Press Works Ltd. (supra) is nearer home and therefore it will not be necessary to multiply each case and unnecessarily overburden the judgment. Suffice it to say that one case which supports the view, which we have taken and which has been relied on by the High Court also. Another case, which is on the same line is Indian Oil Corporation Ltd. & Anr. V. Union of India & Ors. [1980 (Supp) SCC 426] . Similar is the case in Union of India & Anr. V. M/s. K.G. Khosla & Co. Ltd. & Ors. [(1979) 2 SCC 242] . Mr.Ganesh, learned senior counsel for the appellant has also submitted that the Court should also look at as to how the parties have understood the agreement and in support thereof placed reliance on a decision of this Court in The Godhra Electricity Co. Ltd. & Anr. V. The State of Gujarat & Anr. [(1975) 1 SCC 199] and also submitted that the finding of fact recorded by the Tribunal should not have been interfered with by the High Court and also invited our attention to a decision of this Court in Ashok Leyland Ltd. v. State of T.N. & Anr. [(2004) 3 SCC 1] in support of his contention that the goods were not subjected to inter-State sale. It is not necessary to go into all these facts as we have already held above on factual aspect that the goods which were triggered from Rourkela and sold to the subsidiaries of the CIL through the appellants consignment agents were essentially meant to be sold to the subsidiaries of the CIL and the goods primarily triggered from Rourkela and were sent to the subsidiaries of the CIL amounted to inter-State sale and the view taken by the Division Bench of the Orissa High Court is correct. 11. Before we part with this case we may observe that the authorities will go into the factual aspects and find out how much of the quantity of the goods were sent to other undertakings other than the subsidiaries of CIL and assess tax on the supplies which were made to the subsidiaries of CIL as inter-State sale.12. As a result of our above discussion, we
### Response:
0
### Explanation:
It is not necessary to go into all these facts as we have already held above on factual aspect that the goods which were triggered from Rourkela and sold to the subsidiaries of the CIL through the appellants consignment agents were essentially meant to be sold to the subsidiaries of the CIL and the goods primarily triggered from Rourkela and were sent to the subsidiaries of the CIL amounted to inter-State sale and the view taken by the Division Bench of the Orissa High Court iswe part with this case we may observe that the authorities will go into the factual aspects and find out how much of the quantity of the goods were sent to other undertakings other than the subsidiaries of CIL and assess tax on the supplies which were made to the subsidiaries of CIL as inter-State sale.
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Ishikawajma-Harima Heavy Industries Ltd Vs. Director Of Income Tax, Mumbai | Section 9(1)(vii) of the Act whereupon reliance has been placed by the learned Additional Solicitor General, must be read with Section 5 thereof, which takes within its purview the territorial nexus on the basis whereof tax is required to be levied, namely, : (a) resident; and (b) receipt or accrual of income. Global income of a resident although is subjected to tax, global income of a non-resident may not be. The answer to the question would depend upon the nature of the contract and the provisions of DTAA. What is relevant is receipt or accrual of income, as would be evident from a plain reading of Section 5(2) of the Act.. The legal fiction created although in a given case may be held to be of wide import, but it is trite that the terms of a contract are required to be construed having regard to the international covenants and conventions. In a case of this nature, interpretation with reference to the nexus to tax territories will also assume significance. Territorial nexus for the purpose of determining the tax liability is an internationally accepted principle. An endeavour should, thus, be made to construe the taxability of a non-resident in respect of income derived by it. Having regard to the internationally accepted principle and DTAA, it may not be possible to give an extended meaning to the words income deemed to accrue or arise in India as expressed in Section 9 of the Act. Section 9 incorporated various heads of income on which tax is sought to be levied by the Republic of India. Whatever is payable by a resident to a non-resident by way of fees for technical services, thus, would not always come within the purview of Section 9(1)(vii) of the Act. It must have sufficient territorial nexus with India so as to furnish a basis for imposition of tax. Whereas a resident would come within the purview of Section 9(1)(vii) of the Act, a non resident would not, as services of a non-resident to a resident utilize in India may not have much relevance in determining whether the income of the non-resident accrues or arises in India. It must have a direct live link between the services rendered in India, when such a link is established, the same may again be subjected to any relief under DTAA. A distinction may also be made between rendition of services and utilization thereof. Section 9(1)(vii)(c) clearly states "where the fees are payable in respect of services utilized in a business or profession carried on by such person in India" It is evident that Section 9(1)(vii), read in its plain, same envisages the fulfillment of two conditions : services, which are source of income sought to be taxed in India must be (i) utilized in India and (ii) rendered in India. In the present case, both these conditions have not been satisfied simultaneously. The provisions of Section 9(1)(vii) of the Act are plain and capable of being given a meaning. There, therefore, may not be any reason not to give full effect thereto. However, even in relation to such income, the provisions of Article 7 of the DTAA would be applicable, as services rendered outside India would have nothing to do with permanent establishment in India. Thus, if any services have been rendered by the head office of Appellant outside India, only because they were connected with permanent establishment. Even in relation thereto, principle of apportionment shall apply. The Authority, in our opinion, has committed an error in this behalf, as if services rendered by the head office are considered to be the services rendered by the permanent establishment, the distinction between Indian and foreign operations and the apportionment of the income of the operations shall stand obliterated. It would be contrary to the intent and purport of the Double Taxation Convention which is a part of the scheme under the Income Tax Act. We, therefore, hold as under : Re : Offshore Supply : (1) That only such part of the income, as is attributable to the operations carried out in India can be taxed in India. (2) Since all parts of the transaction in question, i.e. the transfer of property in goods as well as the payment, were carried on outside the Indian soil, the transaction could not have been taxed in India. (3) The principle of apportionment, wherein the territorial jurisdiction of a particular state determines its capacity to tax an event, has to be followed. (4) The fact that the contract was signed in India is of no material consequence, since all activities in connection with the offshore supply were outside India, and therefore cannot be deemed to accrue or arise in the country. (5) There exists a distinction between a business connection and a permanent establishment. As the permanent establishment cannot be said to be involved in the transaction, the aforementioned provision will have no application. The permanent establishment cannot be equated to a business connection, since the former is for the purpose of assessment of income of a non-resident under a Double Taxation Avoidance Agreement, and the latter is for the application of Section 9 of the Income Tax Act. (6) Clause (a) of Explanation 1 to S. 9(1)(i) states that only such part of the income as is attributable to the operations carried out in India, are taxable in India. (7) The existence of a permanent establishment would not constitute sufficient business connection, and the permanent establishment would be the taxable entity. The fiscal jurisdiction of a country would not extend to the taxing entire income attributable to the permanent establishment. (8) There exists a difference between the existence of a business connection and the income accruing or arising out of such business connection. (9) Paragraph 6 of the Protocol to the DTAA is not applicable, because, for the profits to be attributable directly or indirectly, the permanent establishment must be involved in the activity giving rise to the profits. Re: Offshore Services : (1) | 1[ds]The test of residence, as applied in international law also, is that of the taxpayer and not that of the recipient of such servicesFor Section 9(1)(vii) to be applicable, it is necessary that the services not only be utilized within India, but also be rendered in India or have such a "live link" with India that the entire income from fees as envisaged in Article 12 of DTAA becomes taxable in IndiaThe terms effectively connected and attributable to are to be construed differently even if the offshore services and the permanent establishment were connectedSection 9(1)(vii)(c) of the Act in this case would have no application as there is nothing to show that the income derived by a non-resident company irrespective of where rendered, was utilized in IndiaArticle 7 of the DTAA is applicable in this case, and it limits the tax on business profits to that arising from the operations of the permanent establishment. In this case, the entire services have been rendered outside India, and have nothing to do with the permanent establishment, and can thus not be attributable to the permanent establishment and therefore not taxable in IndiaApplying the principle of apportionment to composite transactions which have some operations in one territory and some in others, is essential to determine the taxability of various operationsThe location of the source of income within India would not render sufficient nexus to tax the income from that sourceIf the test applied by the Authority for Advanced Rulings is to be adopted here too, then it would eliminate the difference between the connection between Indian and foreign operations, and the apportionment of income accordinglyThe services are inextricably linked to the supply of goods, and it must be considered in the same manner. | 1 | 14,832 | 326 | ### 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:
Section 9(1)(vii) of the Act whereupon reliance has been placed by the learned Additional Solicitor General, must be read with Section 5 thereof, which takes within its purview the territorial nexus on the basis whereof tax is required to be levied, namely, : (a) resident; and (b) receipt or accrual of income. Global income of a resident although is subjected to tax, global income of a non-resident may not be. The answer to the question would depend upon the nature of the contract and the provisions of DTAA. What is relevant is receipt or accrual of income, as would be evident from a plain reading of Section 5(2) of the Act.. The legal fiction created although in a given case may be held to be of wide import, but it is trite that the terms of a contract are required to be construed having regard to the international covenants and conventions. In a case of this nature, interpretation with reference to the nexus to tax territories will also assume significance. Territorial nexus for the purpose of determining the tax liability is an internationally accepted principle. An endeavour should, thus, be made to construe the taxability of a non-resident in respect of income derived by it. Having regard to the internationally accepted principle and DTAA, it may not be possible to give an extended meaning to the words income deemed to accrue or arise in India as expressed in Section 9 of the Act. Section 9 incorporated various heads of income on which tax is sought to be levied by the Republic of India. Whatever is payable by a resident to a non-resident by way of fees for technical services, thus, would not always come within the purview of Section 9(1)(vii) of the Act. It must have sufficient territorial nexus with India so as to furnish a basis for imposition of tax. Whereas a resident would come within the purview of Section 9(1)(vii) of the Act, a non resident would not, as services of a non-resident to a resident utilize in India may not have much relevance in determining whether the income of the non-resident accrues or arises in India. It must have a direct live link between the services rendered in India, when such a link is established, the same may again be subjected to any relief under DTAA. A distinction may also be made between rendition of services and utilization thereof. Section 9(1)(vii)(c) clearly states "where the fees are payable in respect of services utilized in a business or profession carried on by such person in India" It is evident that Section 9(1)(vii), read in its plain, same envisages the fulfillment of two conditions : services, which are source of income sought to be taxed in India must be (i) utilized in India and (ii) rendered in India. In the present case, both these conditions have not been satisfied simultaneously. The provisions of Section 9(1)(vii) of the Act are plain and capable of being given a meaning. There, therefore, may not be any reason not to give full effect thereto. However, even in relation to such income, the provisions of Article 7 of the DTAA would be applicable, as services rendered outside India would have nothing to do with permanent establishment in India. Thus, if any services have been rendered by the head office of Appellant outside India, only because they were connected with permanent establishment. Even in relation thereto, principle of apportionment shall apply. The Authority, in our opinion, has committed an error in this behalf, as if services rendered by the head office are considered to be the services rendered by the permanent establishment, the distinction between Indian and foreign operations and the apportionment of the income of the operations shall stand obliterated. It would be contrary to the intent and purport of the Double Taxation Convention which is a part of the scheme under the Income Tax Act. We, therefore, hold as under : Re : Offshore Supply : (1) That only such part of the income, as is attributable to the operations carried out in India can be taxed in India. (2) Since all parts of the transaction in question, i.e. the transfer of property in goods as well as the payment, were carried on outside the Indian soil, the transaction could not have been taxed in India. (3) The principle of apportionment, wherein the territorial jurisdiction of a particular state determines its capacity to tax an event, has to be followed. (4) The fact that the contract was signed in India is of no material consequence, since all activities in connection with the offshore supply were outside India, and therefore cannot be deemed to accrue or arise in the country. (5) There exists a distinction between a business connection and a permanent establishment. As the permanent establishment cannot be said to be involved in the transaction, the aforementioned provision will have no application. The permanent establishment cannot be equated to a business connection, since the former is for the purpose of assessment of income of a non-resident under a Double Taxation Avoidance Agreement, and the latter is for the application of Section 9 of the Income Tax Act. (6) Clause (a) of Explanation 1 to S. 9(1)(i) states that only such part of the income as is attributable to the operations carried out in India, are taxable in India. (7) The existence of a permanent establishment would not constitute sufficient business connection, and the permanent establishment would be the taxable entity. The fiscal jurisdiction of a country would not extend to the taxing entire income attributable to the permanent establishment. (8) There exists a difference between the existence of a business connection and the income accruing or arising out of such business connection. (9) Paragraph 6 of the Protocol to the DTAA is not applicable, because, for the profits to be attributable directly or indirectly, the permanent establishment must be involved in the activity giving rise to the profits. Re: Offshore Services : (1)
### Response:
1
### Explanation:
The test of residence, as applied in international law also, is that of the taxpayer and not that of the recipient of such servicesFor Section 9(1)(vii) to be applicable, it is necessary that the services not only be utilized within India, but also be rendered in India or have such a "live link" with India that the entire income from fees as envisaged in Article 12 of DTAA becomes taxable in IndiaThe terms effectively connected and attributable to are to be construed differently even if the offshore services and the permanent establishment were connectedSection 9(1)(vii)(c) of the Act in this case would have no application as there is nothing to show that the income derived by a non-resident company irrespective of where rendered, was utilized in IndiaArticle 7 of the DTAA is applicable in this case, and it limits the tax on business profits to that arising from the operations of the permanent establishment. In this case, the entire services have been rendered outside India, and have nothing to do with the permanent establishment, and can thus not be attributable to the permanent establishment and therefore not taxable in IndiaApplying the principle of apportionment to composite transactions which have some operations in one territory and some in others, is essential to determine the taxability of various operationsThe location of the source of income within India would not render sufficient nexus to tax the income from that sourceIf the test applied by the Authority for Advanced Rulings is to be adopted here too, then it would eliminate the difference between the connection between Indian and foreign operations, and the apportionment of income accordinglyThe services are inextricably linked to the supply of goods, and it must be considered in the same manner.
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Messrs Kodar & Others Vs. State of Kerala & Others | buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation, it is not an essential characteristic, of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. 14. In Konduri Buchirajalingam v. State of Hyderabad [1958] 9 S.T.C. 397 this Court said :"It is then said that the sales tax is essentially an indirect tax and therefore it cannot be demanded of the appellant without allowing him to recoup himself by collecting the amount of the tax from the persons with whom he deals. This Court has already decided in the case of Tata Iron and Steel Co. Limited v. The State of Bihar [1958] 9 S.T.C. 267 that in law a sales tax need not be an indirect tax and that a tax can be a sales tax though the primary liability for it is put upon a person without giving him any power to recoup the amount of the tax payable, from any other party."15. As we said, the additional tax is a tax upon sales of goods and not upon the income of a dealer and so long as it is not made out that the tax is confiscatory, it is not possible to accept the contention that because the dealer is disabled from passing on the incidence of tax to the purchaser, the provisions of the Act impose an unreasonable restriction upon the fundamental rights of the appellants under Article 19(1)(g) or 19(1)(f). 16. The last contention namely that the provisions of the Act impose different rates of tax upon different dealers depending upon their turnover which in effect means that the rate of tax on the sale of goods would vary with the volume of the turnover of a dealer and are, therefore, violative of Article 14 is also without any basis. Classification of dealers on the basis of their respective turnover for the purpose of graded imposition so long as it is based on differential criteria relevant to the legislative object to be achieved is not unconstitutional. A classification, depending upon the quantum of the turnover for the purpose of exemption from tax has been upheld in several decided cases. By parity of reasoning, it can be said that a legislative classification making the burden of the tax heavier in proportion to the increase in turnover would be reasonable. The basis is that just as in taxes upon income or upon transfers at death, so also in imposts upon business, the little man, by reason of inferior capacity to pay, should bear a lighter load of taxes, relatively as well as absolutely, than is borne by the big one. The flat rate is thought to be less efficient than the graded one as an instrument of social justice. The large dealer occupies a position of economic superiority by reason of his greater volume of his business. 17. And, to make his tax heavier, both absolutely and relatively, is not arbitrary discrimination, but an attempt to proportion the payment to capacity to pay and thus to arrive in the end at a more genuine equality. The economic wisdom of a tax is within the exclusive province of legislature. The only question for the court to consider is whether there is rationality in the belief of the legislature that capacity to pay the tax increases, by and large, with an increase of receipts. Certain it is that merchants have faith in such a correspondence and act upon that faith.... If experience did not teach that economic advantage goes along with larger sales, there would be an end to the hot pursuit for wide and wider markets.... In brief, there is a relation of correspondence between capacity to pay and the amount of business done. Exceptions, of course, there are. The law builds upon the probables, and shapes the measure of the tax accordingly.... At the very least, an increase of gross sales carries with it an increase of opportunity for profit, which supplies a rational basis for division into classes, at all events when coupled with evidence of a high degree of probability that the opportunity will be fruitful. (See the dissenting judgment (Stewart Dry Goods Co. v. Lewis 294 U. S. 550 of Justice Cardozo Justice Brandeis and Justice Stone). 18. The reasoning of the minority in that case appeals to us as more in consonance with social justice in an egalitarian state than that of the majority. 19. As we said, a large dealer occupies a position of economic superiority by reason of his volume of business and to make the tax heavier on him both absolutely and relatively is not arbitrary discrimination but an attempt to proportion the payment to capacity to pay and thus arrive in the end at a more genuine equality. The capacity of a dealer, in particular circumstances, to pay tax is not an irrelevant factor in fixing the rate of tax and one index of capacity is the quantum of turnover. The argument that while a dealer beyond certain limit is obliged to pay higher tax, when others bear a less tax, and it is consequently discriminatory, really misses the point namely that the former kind of dealers are in a position of economic superiority by reason of their volume of business and form a class by themselves. They cannot be treated as on a par with comparatively small dealers. An attempt to proportion the payment to capacity to pay and thus bring about a real and factual equality cannot be ruled out as irrelevant in levy of tax on the sale or purchase of goods. The object of a tax is not only to raise revenue but also to regulate the economic life of the society. 20. | 0[ds]9. As regards the contention that the Statehas no power to pass the measure, we are of the view that additional tax is really a tax on the sale of goods. The object of the Act, as is clear from its provisions, is to increase the tax on the sale or purchase of goods imposed by Tamil Nadu General Sales Tax Act, 1959 and the fact that quantum of the additional tax is determined with reference to the sales tax imposed would not alter its character. It may be noted that additional tax is to be imposed only if the turnover of a dealer exceeds Rs. 10 lakhs. It is in reality a tax on the aggregate of saleeffected by a dealer during a year. The additional taxtherefore, is an enhancement in the rate of the sales tax whenturnover of a dealer exceeds Rs. 10 lakhs a year and it is a tax on the aggregate of the sales affected by the dealer during the year. The decision in Ernakulam Radiowhich was affirmed by aBench of the Kerala High Court in. Sales Taxtook that view. The same view was taken by the Andhra Pradesh High Court in. Ramachandra RaoState of AndhraThis is the correct view. Entry 54es the state legislature to imposetax on the sale or purchase of goods. Sothe contention of the appellants that the additional sales tax is not a tax on salebut on the income of the dealer is without any basis.As regards the second contention that the provisions of the Act are violative of the fundamental rights of the appellants under Article 19(1)(f) and 19(1)(g), as the tax is upon the sale of goods and is not shown to be confiscatory, it cannot be said that the provisions of the Actany unreasonable restrictions upon theright to carry on trade. It is, no doubt, true that every tax imposesrestriction upon the right to carry on a businesswould not follow that the imposition of the tax in question is an unreasonable restriction uponfundamental right to carry on trade. Generally speaking, the amount or rate of a tax is a matter exclusively within the legislative judgment and as long as a tax retains its avowed character and does not confiscate property to the State under the guise of a tax, its reasonableness is outside the judicial ken.But it was contended that as the dealer is prohibited from passing on the incidence of tax to the purchaserthe additional tax, unlike sales tax, is a tax on income of the dealer which he mustwhether he makes any profit or not and is, therefore, an unreasonable restrictionThe legal incidence ofa tax on saleof goods under the Tamil Nadu General59 falls squarely on the dealer. It may be that he can add the tax to the price of the goods sold and thus pass it on to the purchaser. But it is not necessary that the dealer should be enabled to pass on the incidence of the tax on sale to the purchaser in order that it might bea tax on5. As we said, the additional tax is a tax upon sales of goods and not upon the income of a dealer and so long as it is not made out that the tax is confiscatory, it is not possible to accept the contention that because the dealer is disabled from passing on the incidence of tax to the purchaser, the provisions of the Act impose an unreasonable restriction upon the fundamental rights of the appellants under Article 19(1)(g) or 19(1)(f).The last contention namely that the provisions of the Act impose different rates of tax upon different dealers depending upon their turnover which in effect means that the rate of tax on the sale of goods would vary with the volume of the turnover of a dealer and are, therefore, violative of Article 14 is also without any basis. Classification of dealers on the basis of their respective turnover for the purpose of graded imposition so long as it is based on differential criteria relevant to the legislative object to be achieved is not unconstitutional. A classification, depending upon the quantum of the turnover for the purpose of exemption from tax has been upheld in several decided cases. By parity of reasoning, it can be said that a legislative classification making the burden of the tax heavier in proportion to the increase in turnover would be reasonable. The basis is that just as in taxes upon income or upon transfers at death, so also in imposts upon business, the little man, by reason of inferior capacity to pay, should bear a lighter load of taxes, relatively as well as absolutely, than is borne by the big one. The flat rate is thought to be less efficient than the graded one as anof social justice. The large dealer occupies a position of economic superiority by reason of his greater volume of his business.And, to make his tax heavierboth absolutely and relatively, is not arbitrary discrimination, but an attempt to proportion the payment to capacity to pay and thus to arrive in the end at a more genuine equality. The economic wisdom of a tax is within the exclusive province of legislature. The only question for the court to consider is whether there is rationality in the belief of the legislature that capacity to pay the tax increases, by and large, with an increase ofit is that merchants have faith in such a correspondence and act upon thatdid not teach that economic advantage goes along with larger sales, there would be an end to the hot pursuit for wide and widerIn brief, there is a relation of correspondence between capacity to pay and the amount of business done. Exceptions, ofthere are. The law builds upon theand shapes the measure of the taxAt the very least, an increase of gross sales carries with it an increase of opportunity for profit, which supplies a rational basis for division into classes, at all eventwhen coupled with evidence of a high degree of probability that the opportunity will bethe dissenting judgmentJustice Brandeis and Justicereasoning of the minority in that case appeals to us as more in consonance with social justice in an egalitarian state than that of the majority.As we said, a large dealer occupies a position of economic superiority by reason of his volume of business and to make the tax heavier on him both absolutely and relatively is not arbitrary discrimination but an attempt to proportion the payment to capacity to pay and thus arrive in the end at a more genuine equality. The capacity of a dealer, in particular circumstances, to pay tax is not an irrelevant factor in fixing the rate of tax and one index of capacitythe quantum of turnover. The argument that while a dealer beyond certain limit is obliged to pay higher tax, when others bear a less tax, and it is consequently discriminatoryreally misses the point namely that the former kind of dealers are in a position of economic superiority by reason of their volume of business and form a class byThey cannot be treated as on a par with comparatively small dealers. An attempt to proportion the payment to capacity to pay and thus bring about a real and factual equality cannot be ruled out as irrelevant in levy of tax on the sale or purchase of goods. The object of a tax is not only to raise revenue but also to regulate the economic life of the society. | 0 | 2,454 | 1,358 | ### 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:
buyer, and provisions authorising and regulating the collection of sales tax by the seller from the purchaser are a usual feature of sales tax legislation, it is not an essential characteristic, of a sales tax that the seller must have the right to pass it on to the consumer, nor is the power of the legislature to impose a tax on sales conditional on its making a provision for sellers to collect the tax from the purchasers. 14. In Konduri Buchirajalingam v. State of Hyderabad [1958] 9 S.T.C. 397 this Court said :"It is then said that the sales tax is essentially an indirect tax and therefore it cannot be demanded of the appellant without allowing him to recoup himself by collecting the amount of the tax from the persons with whom he deals. This Court has already decided in the case of Tata Iron and Steel Co. Limited v. The State of Bihar [1958] 9 S.T.C. 267 that in law a sales tax need not be an indirect tax and that a tax can be a sales tax though the primary liability for it is put upon a person without giving him any power to recoup the amount of the tax payable, from any other party."15. As we said, the additional tax is a tax upon sales of goods and not upon the income of a dealer and so long as it is not made out that the tax is confiscatory, it is not possible to accept the contention that because the dealer is disabled from passing on the incidence of tax to the purchaser, the provisions of the Act impose an unreasonable restriction upon the fundamental rights of the appellants under Article 19(1)(g) or 19(1)(f). 16. The last contention namely that the provisions of the Act impose different rates of tax upon different dealers depending upon their turnover which in effect means that the rate of tax on the sale of goods would vary with the volume of the turnover of a dealer and are, therefore, violative of Article 14 is also without any basis. Classification of dealers on the basis of their respective turnover for the purpose of graded imposition so long as it is based on differential criteria relevant to the legislative object to be achieved is not unconstitutional. A classification, depending upon the quantum of the turnover for the purpose of exemption from tax has been upheld in several decided cases. By parity of reasoning, it can be said that a legislative classification making the burden of the tax heavier in proportion to the increase in turnover would be reasonable. The basis is that just as in taxes upon income or upon transfers at death, so also in imposts upon business, the little man, by reason of inferior capacity to pay, should bear a lighter load of taxes, relatively as well as absolutely, than is borne by the big one. The flat rate is thought to be less efficient than the graded one as an instrument of social justice. The large dealer occupies a position of economic superiority by reason of his greater volume of his business. 17. And, to make his tax heavier, both absolutely and relatively, is not arbitrary discrimination, but an attempt to proportion the payment to capacity to pay and thus to arrive in the end at a more genuine equality. The economic wisdom of a tax is within the exclusive province of legislature. The only question for the court to consider is whether there is rationality in the belief of the legislature that capacity to pay the tax increases, by and large, with an increase of receipts. Certain it is that merchants have faith in such a correspondence and act upon that faith.... If experience did not teach that economic advantage goes along with larger sales, there would be an end to the hot pursuit for wide and wider markets.... In brief, there is a relation of correspondence between capacity to pay and the amount of business done. Exceptions, of course, there are. The law builds upon the probables, and shapes the measure of the tax accordingly.... At the very least, an increase of gross sales carries with it an increase of opportunity for profit, which supplies a rational basis for division into classes, at all events when coupled with evidence of a high degree of probability that the opportunity will be fruitful. (See the dissenting judgment (Stewart Dry Goods Co. v. Lewis 294 U. S. 550 of Justice Cardozo Justice Brandeis and Justice Stone). 18. The reasoning of the minority in that case appeals to us as more in consonance with social justice in an egalitarian state than that of the majority. 19. As we said, a large dealer occupies a position of economic superiority by reason of his volume of business and to make the tax heavier on him both absolutely and relatively is not arbitrary discrimination but an attempt to proportion the payment to capacity to pay and thus arrive in the end at a more genuine equality. The capacity of a dealer, in particular circumstances, to pay tax is not an irrelevant factor in fixing the rate of tax and one index of capacity is the quantum of turnover. The argument that while a dealer beyond certain limit is obliged to pay higher tax, when others bear a less tax, and it is consequently discriminatory, really misses the point namely that the former kind of dealers are in a position of economic superiority by reason of their volume of business and form a class by themselves. They cannot be treated as on a par with comparatively small dealers. An attempt to proportion the payment to capacity to pay and thus bring about a real and factual equality cannot be ruled out as irrelevant in levy of tax on the sale or purchase of goods. The object of a tax is not only to raise revenue but also to regulate the economic life of the society. 20.
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that the provisions of the Act are violative of the fundamental rights of the appellants under Article 19(1)(f) and 19(1)(g), as the tax is upon the sale of goods and is not shown to be confiscatory, it cannot be said that the provisions of the Actany unreasonable restrictions upon theright to carry on trade. It is, no doubt, true that every tax imposesrestriction upon the right to carry on a businesswould not follow that the imposition of the tax in question is an unreasonable restriction uponfundamental right to carry on trade. Generally speaking, the amount or rate of a tax is a matter exclusively within the legislative judgment and as long as a tax retains its avowed character and does not confiscate property to the State under the guise of a tax, its reasonableness is outside the judicial ken.But it was contended that as the dealer is prohibited from passing on the incidence of tax to the purchaserthe additional tax, unlike sales tax, is a tax on income of the dealer which he mustwhether he makes any profit or not and is, therefore, an unreasonable restrictionThe legal incidence ofa tax on saleof goods under the Tamil Nadu General59 falls squarely on the dealer. It may be that he can add the tax to the price of the goods sold and thus pass it on to the purchaser. But it is not necessary that the dealer should be enabled to pass on the incidence of the tax on sale to the purchaser in order that it might bea tax on5. As we said, the additional tax is a tax upon sales of goods and not upon the income of a dealer and so long as it is not made out that the tax is confiscatory, it is not possible to accept the contention that because the dealer is disabled from passing on the incidence of tax to the purchaser, the provisions of the Act impose an unreasonable restriction upon the fundamental rights of the appellants under Article 19(1)(g) or 19(1)(f).The last contention namely that the provisions of the Act impose different rates of tax upon different dealers depending upon their turnover which in effect means that the rate of tax on the sale of goods would vary with the volume of the turnover of a dealer and are, therefore, violative of Article 14 is also without any basis. Classification of dealers on the basis of their respective turnover for the purpose of graded imposition so long as it is based on differential criteria relevant to the legislative object to be achieved is not unconstitutional. A classification, depending upon the quantum of the turnover for the purpose of exemption from tax has been upheld in several decided cases. By parity of reasoning, it can be said that a legislative classification making the burden of the tax heavier in proportion to the increase in turnover would be reasonable. The basis is that just as in taxes upon income or upon transfers at death, so also in imposts upon business, the little man, by reason of inferior capacity to pay, should bear a lighter load of taxes, relatively as well as absolutely, than is borne by the big one. The flat rate is thought to be less efficient than the graded one as anof social justice. The large dealer occupies a position of economic superiority by reason of his greater volume of his business.And, to make his tax heavierboth absolutely and relatively, is not arbitrary discrimination, but an attempt to proportion the payment to capacity to pay and thus to arrive in the end at a more genuine equality. The economic wisdom of a tax is within the exclusive province of legislature. The only question for the court to consider is whether there is rationality in the belief of the legislature that capacity to pay the tax increases, by and large, with an increase ofit is that merchants have faith in such a correspondence and act upon thatdid not teach that economic advantage goes along with larger sales, there would be an end to the hot pursuit for wide and widerIn brief, there is a relation of correspondence between capacity to pay and the amount of business done. Exceptions, ofthere are. The law builds upon theand shapes the measure of the taxAt the very least, an increase of gross sales carries with it an increase of opportunity for profit, which supplies a rational basis for division into classes, at all eventwhen coupled with evidence of a high degree of probability that the opportunity will bethe dissenting judgmentJustice Brandeis and Justicereasoning of the minority in that case appeals to us as more in consonance with social justice in an egalitarian state than that of the majority.As we said, a large dealer occupies a position of economic superiority by reason of his volume of business and to make the tax heavier on him both absolutely and relatively is not arbitrary discrimination but an attempt to proportion the payment to capacity to pay and thus arrive in the end at a more genuine equality. The capacity of a dealer, in particular circumstances, to pay tax is not an irrelevant factor in fixing the rate of tax and one index of capacitythe quantum of turnover. The argument that while a dealer beyond certain limit is obliged to pay higher tax, when others bear a less tax, and it is consequently discriminatoryreally misses the point namely that the former kind of dealers are in a position of economic superiority by reason of their volume of business and form a class byThey cannot be treated as on a par with comparatively small dealers. An attempt to proportion the payment to capacity to pay and thus bring about a real and factual equality cannot be ruled out as irrelevant in levy of tax on the sale or purchase of goods. The object of a tax is not only to raise revenue but also to regulate the economic life of the society.
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Uma Shankar & Others Vs. R. Hanumaiah Since Deceased Through His Lrs. & Others | the land in terms of the decision rendered by the High Court in the impugned judgment i.e. Writ Appeal No.727 of 1989. Since we are setting aside the impugned judgment, the BDA as per directions issued by the Chief Minister cannot re-convey the land to the respondent in terms of the decision rendered by the High Court in the impugned judgment i.e. Writ Appeal No.727 of 1989.xxx xxx xxx55. It is not in dispute that Section 48 of the Land Acquisition Act would apply to the acquisitions made under the 1976 Act and in that view of the matter the State could exercise its jurisdiction for re-conveyance of the property in favour of the owner thereof only in the event possession thereof had not been taken. Once such possession is taken even the State cannot direct re-convey the property. It has been accepted before us that Section 21 of the General Clauses Act has no application but reliance has been sought to be placed on Section 65 of the 1976 Act which empowers the Government to issue such directions to the authority as in its opinion are necessary or expedient for carrying out the purpose of the Act. The power of the State Government being circumscribed by the conditions precedent laid down therein and, thus, the directions can be issued only when the same are necessary or expedient for carrying out the purpose of the Act. In a case of this nature, the State Government did not have any such jurisdiction and, thus, the Bangalore Development Authority has rightly refused to comply therewith.xxx xxx xxx xxx58. Bangalore Development Authority has been constituted for specific purposes. It cannot take any action which would defeat such purpose. The State also ordinarily cannot interfere in the day to day functioning of a statutory authority. It can ordinarily exercise its power under Section 65 of the 1976 Act where a policy matter is involved. It has not been established that the Chief Minister had the requisite jurisdiction to issue such a direction. Section 65 of the 1976 Act contemplates an order by the State. Such an order must conform to the provisions of Article 166 of the Constitution of India.xxx xxx xxx xxxxxx xxx xxx xxx61. We accept this appeal and set aside the judgment of the High Court as well as the directions issued by the State Government on the asking of the Chief Minister vide letter dated 12th July, 2005 to the BDA to re-convey the land measuring 6 acres, 20 guntas and 42 Sq. Yds. to the 1st Respondent. The judgment under appeal is set aside and that of the Single Judge is restored. The writ petition is dismissed except to the extent that the 1st respondent would be entitled to re-claim the amount of compensation along with interest as indicated in the earlier paragraphs. Parties shall bear their own costs."This Court concluded the matter by aforesaid decision which was binding on all concerned.6. Thereafter, as total misadventure, Writ Petition (C) No. 26826 of 2005 was filed by R. Hanumaiah in which ignoring the mandate of this Court, the learned Single Judge of the High Court of Karnataka passed an order on 10.06.2009 to give representation to the Government for de-acquiring 6 acres 20 guntas for which there was absolutely no room. The direction was in violation of decision of this Court in the same matter and such a petition ought not to have been entertained by the High Court for a moment. However, the direction was given to the Government to decide the representation. The said direction was stayed in the Writ Appeal filed by the BDA vide dated 12.06.2009.7. On 14.10.2009 in gross violation of the judgment rendered by this Court, notification for de-acquisition was issued by the Government of Karnataka. Consequently, the BDA as well as R. Hanumaiah withdrew the legal proceedings. In the meantime, land had already been allotted to Uma Shankar & Ors, appellants in the appeals before us. They questioned the de-acquisition made under Section 48 of the Act by way of WP(C) Nos. 32919-32922 of 2009. The Status quo was ordered on 12.11.2009. However, the Government realized its blatant mistake and withdrew the notification dated 14.10.2009 on 13.11.2009. The withdrawal of the notification on 13.11.2009 of de-acquisition was questioned by R. Hanumaiah by way of filing WP(C) No. 21186/2010. The Writ Petition was dismissed by the High Court of Karnataka vide order dated 20.04.2012 rightly and relying upon the judgment of this Court in 2005 directing that de-notification itself was not permission.8. The Division Bench of the High Court, set aside the judgment and order passed by the Learned Single Judge;quashed the notification dated 13.11.2009 and directed the State of Karnataka to reconsider the matter afresh by giving opportunity to R. Hanumaiah as well as the BDA.9. We have heard learned counsel for the parties at length. We are of the considered opinion that it was total misadventure and rather contempt of this Court was committed by the State Government while issuing notification dated 14.10.2009 of de-acquisition of land in favour of R. Hanumaiah. It was not permissible exercise in view of the afore-mentioned dictum binding on all the parties. Even the conduct of the then Chief Minister was adversely commented upon by this Court in the decision rendered in 2005. In view of inter parties judgment of this Court, there was no scope left to de-acquire the property under the provisions of Section 48 of the Act. Thus, it was wholly impermissible exercise and notification issued on 14.10.2009 was totally void, illegal and conferred no right to R. Hanumaiah. Thus no hearing was required to be given to R. Hanumaiah in the matter and there was no scope left to issue such illegal notification which was in violation of the law laid down by this Court in the same case. The notification dated 13.11.2009 was rightly issued cancelling the previous notification dated 14.10.2009 as there could not be any de-acquisition of the land. | 1[ds]We are of the considered opinion that it was total misadventure and rather contempt of this Court was committed by the State Government while issuing notification dated 14.10.2009 ofof land in favour of R. Hanumaiah. It was not permissible exercise in view of thedictum binding on all the parties. Even the conduct of the then Chief Minister was adversely commented upon by this Court in the decision rendered in 2005. In view of inter parties judgment of this Court, there was no scope left tothe property under the provisions of Section 48 of the Act. Thus, it was wholly impermissible exercise and notification issued on 14.10.2009 was totally void, illegal and conferred no right to R. Hanumaiah. Thus no hearing was required to be given to R. Hanumaiah in the matter and there was no scope left to issue such illegal notification which was in violation of the law laid down by this Court in the same case. The notification dated 13.11.2009 was rightly issued cancelling the previous notification dated 14.10.2009 as there could not be anyof the land. | 1 | 2,579 | 193 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the land in terms of the decision rendered by the High Court in the impugned judgment i.e. Writ Appeal No.727 of 1989. Since we are setting aside the impugned judgment, the BDA as per directions issued by the Chief Minister cannot re-convey the land to the respondent in terms of the decision rendered by the High Court in the impugned judgment i.e. Writ Appeal No.727 of 1989.xxx xxx xxx55. It is not in dispute that Section 48 of the Land Acquisition Act would apply to the acquisitions made under the 1976 Act and in that view of the matter the State could exercise its jurisdiction for re-conveyance of the property in favour of the owner thereof only in the event possession thereof had not been taken. Once such possession is taken even the State cannot direct re-convey the property. It has been accepted before us that Section 21 of the General Clauses Act has no application but reliance has been sought to be placed on Section 65 of the 1976 Act which empowers the Government to issue such directions to the authority as in its opinion are necessary or expedient for carrying out the purpose of the Act. The power of the State Government being circumscribed by the conditions precedent laid down therein and, thus, the directions can be issued only when the same are necessary or expedient for carrying out the purpose of the Act. In a case of this nature, the State Government did not have any such jurisdiction and, thus, the Bangalore Development Authority has rightly refused to comply therewith.xxx xxx xxx xxx58. Bangalore Development Authority has been constituted for specific purposes. It cannot take any action which would defeat such purpose. The State also ordinarily cannot interfere in the day to day functioning of a statutory authority. It can ordinarily exercise its power under Section 65 of the 1976 Act where a policy matter is involved. It has not been established that the Chief Minister had the requisite jurisdiction to issue such a direction. Section 65 of the 1976 Act contemplates an order by the State. Such an order must conform to the provisions of Article 166 of the Constitution of India.xxx xxx xxx xxxxxx xxx xxx xxx61. We accept this appeal and set aside the judgment of the High Court as well as the directions issued by the State Government on the asking of the Chief Minister vide letter dated 12th July, 2005 to the BDA to re-convey the land measuring 6 acres, 20 guntas and 42 Sq. Yds. to the 1st Respondent. The judgment under appeal is set aside and that of the Single Judge is restored. The writ petition is dismissed except to the extent that the 1st respondent would be entitled to re-claim the amount of compensation along with interest as indicated in the earlier paragraphs. Parties shall bear their own costs."This Court concluded the matter by aforesaid decision which was binding on all concerned.6. Thereafter, as total misadventure, Writ Petition (C) No. 26826 of 2005 was filed by R. Hanumaiah in which ignoring the mandate of this Court, the learned Single Judge of the High Court of Karnataka passed an order on 10.06.2009 to give representation to the Government for de-acquiring 6 acres 20 guntas for which there was absolutely no room. The direction was in violation of decision of this Court in the same matter and such a petition ought not to have been entertained by the High Court for a moment. However, the direction was given to the Government to decide the representation. The said direction was stayed in the Writ Appeal filed by the BDA vide dated 12.06.2009.7. On 14.10.2009 in gross violation of the judgment rendered by this Court, notification for de-acquisition was issued by the Government of Karnataka. Consequently, the BDA as well as R. Hanumaiah withdrew the legal proceedings. In the meantime, land had already been allotted to Uma Shankar & Ors, appellants in the appeals before us. They questioned the de-acquisition made under Section 48 of the Act by way of WP(C) Nos. 32919-32922 of 2009. The Status quo was ordered on 12.11.2009. However, the Government realized its blatant mistake and withdrew the notification dated 14.10.2009 on 13.11.2009. The withdrawal of the notification on 13.11.2009 of de-acquisition was questioned by R. Hanumaiah by way of filing WP(C) No. 21186/2010. The Writ Petition was dismissed by the High Court of Karnataka vide order dated 20.04.2012 rightly and relying upon the judgment of this Court in 2005 directing that de-notification itself was not permission.8. The Division Bench of the High Court, set aside the judgment and order passed by the Learned Single Judge;quashed the notification dated 13.11.2009 and directed the State of Karnataka to reconsider the matter afresh by giving opportunity to R. Hanumaiah as well as the BDA.9. We have heard learned counsel for the parties at length. We are of the considered opinion that it was total misadventure and rather contempt of this Court was committed by the State Government while issuing notification dated 14.10.2009 of de-acquisition of land in favour of R. Hanumaiah. It was not permissible exercise in view of the afore-mentioned dictum binding on all the parties. Even the conduct of the then Chief Minister was adversely commented upon by this Court in the decision rendered in 2005. In view of inter parties judgment of this Court, there was no scope left to de-acquire the property under the provisions of Section 48 of the Act. Thus, it was wholly impermissible exercise and notification issued on 14.10.2009 was totally void, illegal and conferred no right to R. Hanumaiah. Thus no hearing was required to be given to R. Hanumaiah in the matter and there was no scope left to issue such illegal notification which was in violation of the law laid down by this Court in the same case. The notification dated 13.11.2009 was rightly issued cancelling the previous notification dated 14.10.2009 as there could not be any de-acquisition of the land.
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We are of the considered opinion that it was total misadventure and rather contempt of this Court was committed by the State Government while issuing notification dated 14.10.2009 ofof land in favour of R. Hanumaiah. It was not permissible exercise in view of thedictum binding on all the parties. Even the conduct of the then Chief Minister was adversely commented upon by this Court in the decision rendered in 2005. In view of inter parties judgment of this Court, there was no scope left tothe property under the provisions of Section 48 of the Act. Thus, it was wholly impermissible exercise and notification issued on 14.10.2009 was totally void, illegal and conferred no right to R. Hanumaiah. Thus no hearing was required to be given to R. Hanumaiah in the matter and there was no scope left to issue such illegal notification which was in violation of the law laid down by this Court in the same case. The notification dated 13.11.2009 was rightly issued cancelling the previous notification dated 14.10.2009 as there could not be anyof the land.
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M/S EMBASSY PROPERTY DEVELOPMENTS PVT. LTD Vs. THE STATE OF KARNATAKA | Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets, while Section 20(1) uses the word property together with the word value. Sections 18 and 25 do not use the expression property. Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional – (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions:- (a)…………. (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). 40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. 41. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly. 42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection. 43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party. 44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature. | 1[ds]12. For finding an answer to the question on hand, the scope of the jurisdiction and the nature of the powers exercised by – (i) the High Court under Article 226 of the Constitution and (ii) the NCLT and NCLAT under the provisions of IBC, 2016 are to be seen24. Therefore in so far as the question of exercise of the power conferred by Article 226, despite the availability of a statutory alternative remedy, is concerned, Anisminic cannot be relied upon. The distinction between the lack of jurisdiction and the wrongful exercise of the available jurisdiction, should certainly be taken into account by High Courts, when Article 226 is sought to be invoked bypassing a statutory alternative remedy provided by a special statute28. Therefore as rightly contended by the learned Attorney General, the decision of the Government of Karnataka to refuse the benefit of deemed extension of lease, is in the public law domain and hence the correctness of the said decision can be called into question only in a superior court which is vested with the power of judicial review over administrative action.The NCLT, being a creature of a special statute to discharge certain specific functions, cannot be elevated to the status of a superior court having the power of judicial review over administrative action29. The NCLT is not even a Civil Court, which has jurisdiction by virtue of Section 9 of the Code of Civil Procedure to try all suits of a civil nature excepting suits, of which their cognizance is either expressly or impliedly barred. Therefore NCLT can exercise only such powers within the contours of jurisdiction as prescribed by the statute, the law in respect of which, it is called upon to administerThough what is found in Sub-section (2) of Section 180 is not found in the corresponding provision in Part II namely, Section 63, a similar provision is incorporated in an unrelated provision namely Section 64, which primarily deals with expeditious disposal of applications. Thus, there appears to be some mix-up. However, we are not concerned about the same in this case and we have made a reference to the same only because of Sub-section (4) of Section 60, vesting upon the NCLT, all the powers of the DRT38. But the said argument cannot be sustained for the simple reason that the duties of a resolution professional are entirely different from the jurisdiction and powers of NCLT. In fact Section 20(1) cannot be read in isolation, but has to be read in conjunction with Section 18(f)(vi) of the IBC, 2016 together with the Explanation thereunder40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature45. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice49. The objection of the appellants in this regard is well founded50. Even fraudulent tradings carried on by the Corporate Debtor during the insolvency resolution, can be inquired into by the Adjudicating Authority under Section 66. Section 69 makes an officer of the corporate debtor and the corporate debtor liable for punishment, for carrying on transactions with a view to defraud creditors. Therefore, NCLT is vested with the power to inquire into (i) fraudulent initiation of proceedings as well as (ii) fraudulent transactions. It is significant to note that Section 65(1) deals with a situation where CIRP is initiated fraudulently for any purpose other than for the resolution of insolvency or liquidation51. Therefore, if, as contended by the Government of Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65(1). Therefore, it is clear that NCLT has jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT will also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61 | 1 | 10,500 | 1,687 | ### 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:
Section 18 speaks about the duties of the interim resolution professional and Section 25 speaks about the duties of resolution professional. These two provisions use the word assets, while Section 20(1) uses the word property together with the word value. Sections 18 and 25 do not use the expression property. Another important aspect is that under Section 25 (2) (b) of IBC, 2016, the resolution professional is obliged to represent and act on behalf of the corporate debtor with third parties and exercise rights for the benefit of the corporate debtor in judicial, quasi-judicial and arbitration proceedings. Section 25(1) and 25(2)(b) reads as follows: 25. Duties of resolution professional – (1) It shall be the duty of the resolution professional to preserve and protect the assets of the corporate debtor, including the continued business operations of the corporate debtor. (2) For the purposes of sub-section (1), the resolution professional shall undertake the following actions:- (a)…………. (b) represent and act on behalf of the corporate debtor with third parties, exercise rights for the benefit of the corporate debtor in judicial, quasi judicial and arbitration proceedings. This shows that wherever the corporate debtor has to exercise rights in judicial, quasi-judicial proceedings, the resolution professional cannot short-circuit the same and bring a claim before NCLT taking advantage of Section 60(5). 40. Therefore in the light of the statutory scheme as culled out from various provisions of the IBC, 2016 it is clear that wherever the corporate debtor has to exercise a right that falls outside the purview of the IBC, 2016 especially in the realm of the public law, they cannot, through the resolution professional, take a bypass and go before NCLT for the enforcement of such a right. 41. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly. 42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection. 43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party. 44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature.
### Response:
1
### Explanation:
of such a. In fact the Resolution Professional in this case appears to have understood this legal position correctly, in the initial stages. This is why when the Government of Karnataka did not grant the benefit of deemed extension, even after the expiry of the lease on 25.05.2018, the Resolution Professional moved the High Court by way of a writ petition in WP No. 23075 of 2018. The prayer made in WP No. 23075 of 2018 was for a declaration that the mining lease should be deemed to be valid upto 31.03.2020. If NCLT was omnipotent, the Resolution Professional would have moved the NCLT itself for such a declaration. But he did not, as he understood the legal position correctly42. After the filing of the first writ petition (WP No. 23075 of 2018), the Government of Karnataka passed an order dated 26.09.2018 rejecting the claim. Therefore the Resolution Professional, representing the Corporate Debtor filed a memo before the High Court seeking withdrawal of the writ petition with liberty to file a fresh writ petition. However the High Court, while dismissing the writ petition by order dated 28.09.2018 was little considerate and it disposed of the writ petition as withdrawn with liberty to take recourse to appropriate remedies in accordance with law. Perhaps taking advantage of this liberty, the Resolution Applicant moved the NCLT against the order of rejection passed by the Government of Karnataka. If NCLT was not considered by the Resolution Professional, in the first instance, to be empowered to issue a declaration of deemed extension of lease, we fail to understand how NCLT could be considered to have the power of judicial review over the order of rejection43. The fact that the Government of Karnataka agreed in the second writ petition WP No. 5002 of 2019 to go back to the NCLT and contest the Miscellaneous Application filed by the Resolution Professional, would not tantamount to conceding the jurisdiction of NCLT. In any case a tribunal which is the creature of a statute cannot be clothed with a jurisdiction, by any concession made by a party44. A lot of stress was made on the effect of Section 14 of IBC, 2016 on the deemed extension of lease. But we do not think that the moratorium provided for in Section 14 could have any impact upon the right of the Government to refuse the extension of lease. The purpose of moratorium is only to preserve the status quo and not to create a new right. Therefore nothing turns on Section 14 of IBC, 2016. Even Section 14 (1) (d), of IBC, 2016, which prohibits, during the period of moratorium, the recovery of any property by an owner or lessor where such property is occupied by or in the possession of the corporate debtor, will not go to the rescue of the corporate debtor, since what is prohibited therein, is only the right not to be dispossessed, but not the right to have renewal of the lease of such property. In fact the right not to be dispossessed, found in Section 14 (1) (d), will have nothing to do with the rights conferred by a mining lease especially on a government land. What is granted under the deed of mining lease in ML 2293 dated 04.01.2001, by the Government of Karnataka, to the Corporate Debtor, was the right to mine, excavate and recover iron ore and red oxide for a specified period of time. The Deed of Lease contains a Schedule divided into several parts. Part-I of the Schedule describes the location and area of the lease. Part-II indicates the liberties and privileges of the lessee. The restrictions and conditions subject to which the grant can be enjoyed are found in Part-III of the Schedule. The liberties, powers and privileges reserved to the Government, despite the grant, are indicated in Part-IV. This Part-IV entitles the Government to work on other minerals (other than iron ore and red oxide) on the same land, even during the subsistence of the lease. Therefore, what was granted to the Corporate Debtor was not an exclusive possession of the area in question, so as to enable the Resolution Professional to invoke Section 14 (1) (d). Section 14 (1) (d) may have no application to situations of this nature45. Therefore, in fine, our answer to the first question would be that NCLT did not have jurisdiction to entertain an application against the Government of Karnataka for a direction to execute Supplemental Lease Deeds for the extension of the mining lease. Since NCLT chose to exercise a jurisdiction not vested in it in law, the High Court of Karnataka was justified in entertaining the writ petition, on the basis that NCLT was coram non judice49. The objection of the appellants in this regard is well founded50. Even fraudulent tradings carried on by the Corporate Debtor during the insolvency resolution, can be inquired into by the Adjudicating Authority under Section 66. Section 69 makes an officer of the corporate debtor and the corporate debtor liable for punishment, for carrying on transactions with a view to defraud creditors. Therefore, NCLT is vested with the power to inquire into (i) fraudulent initiation of proceedings as well as (ii) fraudulent transactions. It is significant to note that Section 65(1) deals with a situation where CIRP is initiated fraudulently for any purpose other than for the resolution of insolvency or liquidation51. Therefore, if, as contended by the Government of Karnataka, the CIRP had been initiated by one and the same person taking different avatars, not for the genuine purpose of resolution of insolvency or liquidation, but for the collateral purpose of cornering the mine and the mining lease, the same would fall squarely within the mischief addressed by Section 65(1). Therefore, it is clear that NCLT has jurisdiction to enquire into allegations of fraud. As a corollary, NCLAT will also have jurisdiction. Hence, fraudulent initiation of CIRP cannot be a ground to bypass the alternative remedy of appeal provided in Section 61
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Vinod Vs. Collector and Chairman, District Selection Committee, Chandrapur and Ors | Kurian Joseph, J.1. Leave granted.2. In the nature of order we propose to pass, it is not necessary to issue notice to the Respondents since the interest of the Respondents is not otherwise affected.3. The Appellant has been non-suited by the High Court on the ground that the second writ petition filed is not maintainable, having withdrawn earlier writ petition without any leave.4. The order dated 28.07.2016 passed in the earlier Writ Petition No. 2748/2016 reads as follows:Shri V.A. Dhabe, the learned Counsel for the Petitioner seeks permission to withdraw the Writ Petition.Permission is granted. The Writ Petition stands disposed of as withdrawn.5. It is fairly clear that the petition was withdrawn only on account of the pendency of the appeal. Apparently, that is why the High Court has, in fact, not dismissed the petition; it has only disposed it of.6. In the second writ petition leading to the impugned judgment, there is a specific prayer, which reads as follows:(iii) quash and set aside the communication dated 3.9.2016 at Annexure-10 issued by Respondent No. 5 being violative of principles of natural justice and bad in law;7. It appears that the prayer challenging the subsequent order passed in appeal was not brought to the notice of the High Court. | 1[ds]2. In the nature of order we propose to pass, it is not necessary to issue notice to the Respondents since the interest of the Respondents is not otherwise affected3. The Appellant has been non-suited by the High Court on the ground that the second writ petition filed is not maintainable, having withdrawn earlier writ petition without any leave5. It is fairly clear that the petition was withdrawn only on account of the pendency of the appeal. Apparently, that is why the High Court has, in fact, not dismissed the petition; it has only disposed it of7. It appears that the prayer challenging the subsequent order passed in appeal was not brought to the notice of the High Court. | 1 | 239 | 135 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
Kurian Joseph, J.1. Leave granted.2. In the nature of order we propose to pass, it is not necessary to issue notice to the Respondents since the interest of the Respondents is not otherwise affected.3. The Appellant has been non-suited by the High Court on the ground that the second writ petition filed is not maintainable, having withdrawn earlier writ petition without any leave.4. The order dated 28.07.2016 passed in the earlier Writ Petition No. 2748/2016 reads as follows:Shri V.A. Dhabe, the learned Counsel for the Petitioner seeks permission to withdraw the Writ Petition.Permission is granted. The Writ Petition stands disposed of as withdrawn.5. It is fairly clear that the petition was withdrawn only on account of the pendency of the appeal. Apparently, that is why the High Court has, in fact, not dismissed the petition; it has only disposed it of.6. In the second writ petition leading to the impugned judgment, there is a specific prayer, which reads as follows:(iii) quash and set aside the communication dated 3.9.2016 at Annexure-10 issued by Respondent No. 5 being violative of principles of natural justice and bad in law;7. It appears that the prayer challenging the subsequent order passed in appeal was not brought to the notice of the High Court.
### Response:
1
### Explanation:
2. In the nature of order we propose to pass, it is not necessary to issue notice to the Respondents since the interest of the Respondents is not otherwise affected3. The Appellant has been non-suited by the High Court on the ground that the second writ petition filed is not maintainable, having withdrawn earlier writ petition without any leave5. It is fairly clear that the petition was withdrawn only on account of the pendency of the appeal. Apparently, that is why the High Court has, in fact, not dismissed the petition; it has only disposed it of7. It appears that the prayer challenging the subsequent order passed in appeal was not brought to the notice of the High Court.
|
Malwa Shaw Vs. The State of West Bengal | cut down and stole away 85 kgs. of copper wire from electric posts Nos. F/11 to F/13 on Ghoshpara Road, Bhatpara, near Rupasree Cinema Hall, P. S. Jagatdal causing disruption to the maintenance of supply of power and light which are essential to the community. Subsequently, you along with your associates were caught redhanded by Shri Lal Baba Jadav and others of Gouripore, Nalhati while you were in the act of carrying the said stolen copper wire".The petitioner made a representation against the order of detention and the representation was received by the State Government on 25th May, 1972. The State Government thereafter placed the case of the petitioner before the Advisory Board on 29th May, 1972 together with the grounds on which the order of detention was made and the representation of the petitioner and the Advisory Board, after giving a personal hearing to the petitioner, submitted its report dated 18th July, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereupon passed an order dated 29th July, 1972 confirming the detention of the petitioner under sub-section (1) of Sec. 12 of the Act. This order of detention is challenged by the petitioner in the present petition.2. Though at the commencement of the argument three contentions were formulated by the learned Counsel appearing on behalf of the petitioner against the validity of the order of detention, two were given up when it became evident in the course of the discussion that they were wholly unfounded and ultimately only one contention was pressed by him on behalf of the petitioner. He contended that all the three grounds on which the order of detention was made related to incidents alleged to have taken place between 5th October, 1971 and 31st October, 1971 and they could not reasonably from the basis for reaching a satisfaction on 21st April, 1972 when the order of detention was made, that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and with a view to preventing him from so acting, it was necessary to detain him. The argument was that the date when the order of detention was made was so far removed from the date of the alleged incidents that no reasonable person, on the basis of the alleged incidents which took place about five months before, could possibly arrive at the satisfaction leading to the making of the order of detention. The satisfaction of the District Magistrate, which was the foundation of the making of the the making of the order of detention, was therefore no satisfaction at all and order of detention based on it was invalid. This contention is without force and cannot be accepted. The District Magistrate has filed an affidavit in reply to the petition stating that he was satisfied on the basis of the incidents referred to in the grounds of detention that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and he had, therefore, passed the impugned order detaining the petitioner. Of course this statement made on oath by District Magistrate merely affirms the recital made in the order of detention and like the recital, it can be shown to be incorrect.But when the District Magistrate has made a statement on oath, the burden would be heavy on the petitioner to show that what is stated by the District Magistrate is not correct. The petitioner would have to established from the material on record that the District Magistrate could not possibly have arrived at the satisfaction which he claims to have done and that his satisfaction is colorable. Now the only circumstance on which the petitioner has been able to rest his case is the fact that the incidents referred to in the grounds of detention took place between 5th October, 1971 and 31st October, 1971 while the satisfaction constitutes the foundation of the order of detention was arrived at by the District Magistrate on 21st April, 1972, more than five months after the date of the alleged incidents. But this circumstance cannot avail the petition. It is but a reed of straw which cannot support the argument of the petitioner. The time lag between the dates of the alleged incidents and making of the order of detention is not so large that it can be said that no reasonable person could possibly arrive at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It must be remembered that some time is bound to elapse before the investigation into the alleged incidents is completed and the matter is brought to the notice of the District Magistrate and the District Magistrate applies his mind and arrives at the requisite satisfaction culminating, in the order of detention. The period of about five months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute. The satisfaction which the District Magistrate is required to reach in order to support the order of detention is that it is necessary to detain the petitioner with a view to preventing him from acting in a particular manner and that satisfaction can obviously be founded on a reasonably anticipated prognosis of future behavior of the petitioner made on the basis of past incidents. It is not possible to say that the incidents referred to in the grounds of detention were such that they could not reasonably lead to the satisfaction which the District Magistrate reached when he made the order of detention. This contention urged on behalf of the petitioner must, therefore, be rejected and the order of detention must be held to be valid. | 0[ds]2. Though at the commencement of the argument three contentions were formulated by the learned Counsel appearing on behalf of the petitioner against the validity of the order of detention, two were given up when it became evident in the course of the discussion that they were wholly unfounded and ultimately only one contention was pressed by him on behalf of the petitioner. He contended that all the three grounds on which the order of detention was made related to incidents alleged to have taken place between 5th October, 1971 and 31st October, 1971 and they could not reasonably from the basis for reaching a satisfaction on 21st April, 1972 when the order of detention was made, that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and with a view to preventing him from so acting, it was necessary to detain him. The argument was that the date when the order of detention was made was so far removed from the date of the alleged incidents that no reasonable person, on the basis of the alleged incidents which took place about five months before, could possibly arrive at the satisfaction leading to the making of the order of detention. The satisfaction of the District Magistrate, which was the foundation of the making of the the making of the order of detention, was therefore no satisfaction at all and order of detention based on it was invalid. This contention is without force and cannot be accepted. The District Magistrate has filed an affidavit in reply to the petition stating that he was satisfied on the basis of the incidents referred to in the grounds of detention that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and he had, therefore, passed the impugned order detaining the petitioner. Of course this statement made on oath by District Magistrate merely affirms the recital made in the order of detention and like the recital, it can be shown to be incorrect.But when the District Magistrate has made a statement on oath, the burden would be heavy on the petitioner to show that what is stated by the District Magistrate is not correct. The petitioner would have to established from the material on record that the District Magistrate could not possibly have arrived at the satisfaction which he claims to have done and that his satisfaction is colorable. Now the only circumstance on which the petitioner has been able to rest his case is the fact that the incidents referred to in the grounds of detention took place between 5th October, 1971 and 31st October, 1971 while the satisfaction constitutes the foundation of the order of detention was arrived at by the District Magistrate on 21st April, 1972, more than five months after the date of the alleged incidents. But this circumstance cannot avail the petition. It is but a reed of straw which cannot support the argument of the petitioner. The time lag between the dates of the alleged incidents and making of the order of detention is not so large that it can be said that no reasonable person could possibly arrive at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It must be remembered that some time is bound to elapse before the investigation into the alleged incidents is completed and the matter is brought to the notice of the District Magistrate and the District Magistrate applies his mind and arrives at the requisite satisfaction culminating, in the order of detention. The period of about five months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute. The satisfaction which the District Magistrate is required to reach in order to support the order of detention is that it is necessary to detain the petitioner with a view to preventing him from acting in a particular manner and that satisfaction can obviously be founded on a reasonably anticipated prognosis of future behavior of the petitioner made on the basis of past incidents. It is not possible to say that the incidents referred to in the grounds of detention were such that they could not reasonably lead to the satisfaction which the District Magistrate reached when he made the order of detention. This contention urged on behalf of the petitioner must, therefore, be rejected and the order of detention must be held to be valid. | 0 | 1,427 | 840 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
cut down and stole away 85 kgs. of copper wire from electric posts Nos. F/11 to F/13 on Ghoshpara Road, Bhatpara, near Rupasree Cinema Hall, P. S. Jagatdal causing disruption to the maintenance of supply of power and light which are essential to the community. Subsequently, you along with your associates were caught redhanded by Shri Lal Baba Jadav and others of Gouripore, Nalhati while you were in the act of carrying the said stolen copper wire".The petitioner made a representation against the order of detention and the representation was received by the State Government on 25th May, 1972. The State Government thereafter placed the case of the petitioner before the Advisory Board on 29th May, 1972 together with the grounds on which the order of detention was made and the representation of the petitioner and the Advisory Board, after giving a personal hearing to the petitioner, submitted its report dated 18th July, 1972 stating that in its opinion there was sufficient cause for the detention of the petitioner. The State Government thereupon passed an order dated 29th July, 1972 confirming the detention of the petitioner under sub-section (1) of Sec. 12 of the Act. This order of detention is challenged by the petitioner in the present petition.2. Though at the commencement of the argument three contentions were formulated by the learned Counsel appearing on behalf of the petitioner against the validity of the order of detention, two were given up when it became evident in the course of the discussion that they were wholly unfounded and ultimately only one contention was pressed by him on behalf of the petitioner. He contended that all the three grounds on which the order of detention was made related to incidents alleged to have taken place between 5th October, 1971 and 31st October, 1971 and they could not reasonably from the basis for reaching a satisfaction on 21st April, 1972 when the order of detention was made, that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and with a view to preventing him from so acting, it was necessary to detain him. The argument was that the date when the order of detention was made was so far removed from the date of the alleged incidents that no reasonable person, on the basis of the alleged incidents which took place about five months before, could possibly arrive at the satisfaction leading to the making of the order of detention. The satisfaction of the District Magistrate, which was the foundation of the making of the the making of the order of detention, was therefore no satisfaction at all and order of detention based on it was invalid. This contention is without force and cannot be accepted. The District Magistrate has filed an affidavit in reply to the petition stating that he was satisfied on the basis of the incidents referred to in the grounds of detention that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and he had, therefore, passed the impugned order detaining the petitioner. Of course this statement made on oath by District Magistrate merely affirms the recital made in the order of detention and like the recital, it can be shown to be incorrect.But when the District Magistrate has made a statement on oath, the burden would be heavy on the petitioner to show that what is stated by the District Magistrate is not correct. The petitioner would have to established from the material on record that the District Magistrate could not possibly have arrived at the satisfaction which he claims to have done and that his satisfaction is colorable. Now the only circumstance on which the petitioner has been able to rest his case is the fact that the incidents referred to in the grounds of detention took place between 5th October, 1971 and 31st October, 1971 while the satisfaction constitutes the foundation of the order of detention was arrived at by the District Magistrate on 21st April, 1972, more than five months after the date of the alleged incidents. But this circumstance cannot avail the petition. It is but a reed of straw which cannot support the argument of the petitioner. The time lag between the dates of the alleged incidents and making of the order of detention is not so large that it can be said that no reasonable person could possibly arrive at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It must be remembered that some time is bound to elapse before the investigation into the alleged incidents is completed and the matter is brought to the notice of the District Magistrate and the District Magistrate applies his mind and arrives at the requisite satisfaction culminating, in the order of detention. The period of about five months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute. The satisfaction which the District Magistrate is required to reach in order to support the order of detention is that it is necessary to detain the petitioner with a view to preventing him from acting in a particular manner and that satisfaction can obviously be founded on a reasonably anticipated prognosis of future behavior of the petitioner made on the basis of past incidents. It is not possible to say that the incidents referred to in the grounds of detention were such that they could not reasonably lead to the satisfaction which the District Magistrate reached when he made the order of detention. This contention urged on behalf of the petitioner must, therefore, be rejected and the order of detention must be held to be valid.
### Response:
0
### Explanation:
2. Though at the commencement of the argument three contentions were formulated by the learned Counsel appearing on behalf of the petitioner against the validity of the order of detention, two were given up when it became evident in the course of the discussion that they were wholly unfounded and ultimately only one contention was pressed by him on behalf of the petitioner. He contended that all the three grounds on which the order of detention was made related to incidents alleged to have taken place between 5th October, 1971 and 31st October, 1971 and they could not reasonably from the basis for reaching a satisfaction on 21st April, 1972 when the order of detention was made, that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and with a view to preventing him from so acting, it was necessary to detain him. The argument was that the date when the order of detention was made was so far removed from the date of the alleged incidents that no reasonable person, on the basis of the alleged incidents which took place about five months before, could possibly arrive at the satisfaction leading to the making of the order of detention. The satisfaction of the District Magistrate, which was the foundation of the making of the the making of the order of detention, was therefore no satisfaction at all and order of detention based on it was invalid. This contention is without force and cannot be accepted. The District Magistrate has filed an affidavit in reply to the petition stating that he was satisfied on the basis of the incidents referred to in the grounds of detention that the petitioner was acting in a manner prejudicial to the maintenance of supplies and services essential to the community and he had, therefore, passed the impugned order detaining the petitioner. Of course this statement made on oath by District Magistrate merely affirms the recital made in the order of detention and like the recital, it can be shown to be incorrect.But when the District Magistrate has made a statement on oath, the burden would be heavy on the petitioner to show that what is stated by the District Magistrate is not correct. The petitioner would have to established from the material on record that the District Magistrate could not possibly have arrived at the satisfaction which he claims to have done and that his satisfaction is colorable. Now the only circumstance on which the petitioner has been able to rest his case is the fact that the incidents referred to in the grounds of detention took place between 5th October, 1971 and 31st October, 1971 while the satisfaction constitutes the foundation of the order of detention was arrived at by the District Magistrate on 21st April, 1972, more than five months after the date of the alleged incidents. But this circumstance cannot avail the petition. It is but a reed of straw which cannot support the argument of the petitioner. The time lag between the dates of the alleged incidents and making of the order of detention is not so large that it can be said that no reasonable person could possibly arrive at the satisfaction which the District Magistrate did on the basis of the alleged incidents. It must be remembered that some time is bound to elapse before the investigation into the alleged incidents is completed and the matter is brought to the notice of the District Magistrate and the District Magistrate applies his mind and arrives at the requisite satisfaction culminating, in the order of detention. The period of about five months which elapsed between the dates of alleged incidents and the making of the order of detention cannot be regarded as so unreasonably long as to warrant the inference that no satisfaction was really arrived at by the District Magistrate or that the satisfaction was colourable or no satisfaction at all as required by the statute. The satisfaction which the District Magistrate is required to reach in order to support the order of detention is that it is necessary to detain the petitioner with a view to preventing him from acting in a particular manner and that satisfaction can obviously be founded on a reasonably anticipated prognosis of future behavior of the petitioner made on the basis of past incidents. It is not possible to say that the incidents referred to in the grounds of detention were such that they could not reasonably lead to the satisfaction which the District Magistrate reached when he made the order of detention. This contention urged on behalf of the petitioner must, therefore, be rejected and the order of detention must be held to be valid.
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Larsen and Toubro Limited Vs. Maharashtra state Electricity Board and others | successful completion of trial operation or within the extended period as can be mutually agreed. In case the performance test cannot be conducted within a period of 75 days after successful completion of trial operation due to reasons solely attributable to owner, the time frame and method of conductance of the same shall be discussed mutually and finalised. xxx xxx xxx v) Any special equipment, tools and tackles required for the successful completion of the performance tests shall be provided by the Contractor free of cost. 70.4.01 Upon successful completion of all the performance tests at site, the owner shall issue to the Contractor a Taking Over Certificate as a proof of the final acceptance of the equipment.... The first respondent-Board intimated the appellant by communication dated 10-6-1994 thus : After reasonable completion of the Coal Handling Plant works as per the contract 2 M Part-A, capacity operation of the various equipment of C.H.P. were planned from 15th January, 1994, Rates as well as design capacity trials also tried. Certain points for stabilisation which were pointed to L & T were attended. Since these trials are generally satisfactory as per Clause Nos. 70.2 and 70.3, all the commissioned equipments under the contract of 2M Part-A are taken over by MSEB for regular operation and maintenance from 10th June, 1994 as per Clause No.70.4 of Contract Agreement Vol.I. The appellant wrote to the first respondent on 21-2-1994 that the plant was completed and so all Bank Guarantees have served their contractual requirements.On a perusal of the relevant clauses in the contract, executed between the appellants and the first respondent, and the communication of the first respondent dated 10-6-1994, it is fairly clear that the stipulations or conditions mentioned as per Clauses 70.2, 70.3 and 70.4 have been successfully fulfilled and the Plant was admittedly taken over by the first respondent. The Guarantee given by the Citi Bank. N.A. dated 10th May, 1989 appearing in Volume II at pages 122 to 126 will ensure only till successful completion of the trial operations and the plant is taken over. That event having ensued, the invocation of the Guarantee given by the Citi Bank dated 10-5-1985 in the sum of Rs.2.72 crores is not encashable on its terms and in order to prevent irretrievable injustice, an injunction as prayed for, to respondents 1 and 4 deserves to be issued on that score. The Court below was in error in not doing so. We hereby restrain respondents 1 and 4 from invoking the Bank Guarantee aforesaid. 12. But item No.5 partial release of retention money, for which the second respondent. Standard Chartered Bank has given a Bank Guarantee for Rs.1,12,00,000 (Rs.1.12 crores) stands on a different footing. The relevant Guarantee is contained in paper book Volume II at pages 134 to 138. The first respondent made an ad hoc payment of Rs.1.11 crores out of the total retention amount for which the Guarantee was furnished by the Standard Chartered Bank. It is an unequivocal and unconditional Guarantee. We hold that no fraud or irretrievable injustice has been made out by the appellant. The Court below was justified in declining to issue an order of injunction on this count. 13. The last item is covered by the Guarantee specified as No.4 hereinabove. It was furnished by the Bank of Baroda as a security against liquidated damages. The Guarantee is contained in paper book Volume II at Pages 129-131. 14. The Bank has given Guarantee for Rs.6.13 crores against the liquidated damages recoverable by the first respondent-Board, from the appellant. The relevant clauses regarding levy of liquidated damages is contained at pages 99 and 100 of the paper book. (Clause 75.01), to the following effect : 75.01 If the Contractor fails to complete the works as per the Clause 72.01, items 1, 2 and 3 within a period of 25 months from the date of letter of intent or within any extension of time granted by the owner then the liquidated damages shall be levied by the Owner on the Contractor at the rate of 1/2% (one half of one percent) per week of delay of the contract price for the works limited to 10% (ten percent) of the contract price of the works. Appellants Counsel argued that before invoking the Bank Guarantee the first respondent should have levied the liquidated damages and only for the sum so determined, and intimated to the appellant, the Bank Guarantee can be invoked. It was further argued that the Guarantee was due for expiry on 26-9-1994 and it has been invoked after the expiry of the said period. There is no force in the above pleas. It is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight crores - much more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated 14-9-1994, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on 26-9-1994, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without substance. | 1[ds]8. Having heard Counsel and on perusing the relevant records, we are of the view that the order of the Court below regarding Item No.3Partial release of retention money in the sum of Rs.2,72,39,850/9. The Guarantee given on this count by the Standard Chartered Bank for sum of Rs.5,50,30,000 is contained in paper book Volume II at pages 109 to 113. It was agreed at the bar that the Bank Guarantee has not been invoked for the entire sum of Rs.5.50 crores but is limited to a sum of Rs.8 lakhs only. We find that dispute exists with regard to the said, as is evident from the relevant papers(Volume II pages 312 and 316). It is seen from the communication dated4 addressed by the first respondent to the appellant, with an endorsement to the Standard Chartered Bank, that a request was made to extend the validity of the Bank Guarantee for a further period of 6 months, i.e.4 and in case the extension is not received before that date, the communication be treated as notice for encashment (Vol.II pages 33 to 34 of the paper book). We are of the view that the invocation of the Guarantee is in time. We hold that in the light of the disputes pending before the Arbitrator, the Court below was justified in declining to grant an injunction against the invocation of the Bank Guarantee on this countThe appellant wrote to the first respondent on4 that the plant was completed and so all Bank Guarantees have served their contractual requirements.On a perusal of the relevant clauses in the contract, executed between the appellants and the first respondent, and the communication of the first respondent dated, it is fairly clear that the stipulations or conditions mentioned as per Clauses 70.2, 70.3 and 70.4 have been successfully fulfilled and the Plant was admittedly taken over by the first respondent. The Guarantee given by the Citi Bank. N.A. dated 10th May, 1989 appearing in Volume II at pages 122 to 126 will ensure only till successful completion of the trial operations and the plant is taken over. That event having ensued, the invocation of the Guarantee given by the Citi Bank dated5 in the sum of Rs.2.72 crores is not encashable on its terms and in order to prevent irretrievable injustice, an injunction as prayed for, to respondents 1 and 4 deserves to be issued on that score. The Court below was in error in not doing so. We hereby restrain respondents 1 and 4 from invoking the Bank Guarantee aforesaid12. But item No.5 partial release of retention money, for which the second respondent. Standard Chartered Bank has given a Bank Guarantee for Rs.1,12,00,000 (Rs.1.12 crores) stands on a different footing. The relevant Guarantee is contained in paper book Volume II at pages 134 to 138. The first respondent made an ad hoc payment of Rs.1.11 crores out of the total retention amount for which the Guarantee was furnished by the Standard Chartered Bank. It is an unequivocal and unconditional Guarantee. We hold that no fraud or irretrievable injustice has been made out by the appellant. The Court below was justified in declining to issue an order of injunction on this count14. The Bank has given Guarantee for Rs.6.13 crores against the liquidated damages recoverable by the first, from the appellant. The relevant clauses regarding levy of liquidated damages is contained at pages 99 and 100 of the paper book. (Clause 75.01), to the following effect :75.01 If the Contractor fails to complete the works as per the Clause 72.01, items 1, 2 and 3 within a period of 25 months from the date of letter of intent or within any extension of time granted by the owner then the liquidated damages shall be levied by the Owner on the Contractor at the rate of 1/2% (one half of one percent) per week of delay of the contract price for the works limited to 10% (ten percent) of the contract price of the worksAppellants Counsel argued that before invoking the Bank Guarantee the first respondent should have levied the liquidated damages and only for the sum so determined, and intimated to the appellant, the Bank Guarantee can be invoked. It was further argued that the Guarantee was due for expiry on4 and it has been invoked after the expiry of the said period.There is no force in the above pleas. It is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight croresmuch more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without substanceIt is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight croresmuch more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without | 1 | 3,442 | 1,265 | ### Instruction:
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successful completion of trial operation or within the extended period as can be mutually agreed. In case the performance test cannot be conducted within a period of 75 days after successful completion of trial operation due to reasons solely attributable to owner, the time frame and method of conductance of the same shall be discussed mutually and finalised. xxx xxx xxx v) Any special equipment, tools and tackles required for the successful completion of the performance tests shall be provided by the Contractor free of cost. 70.4.01 Upon successful completion of all the performance tests at site, the owner shall issue to the Contractor a Taking Over Certificate as a proof of the final acceptance of the equipment.... The first respondent-Board intimated the appellant by communication dated 10-6-1994 thus : After reasonable completion of the Coal Handling Plant works as per the contract 2 M Part-A, capacity operation of the various equipment of C.H.P. were planned from 15th January, 1994, Rates as well as design capacity trials also tried. Certain points for stabilisation which were pointed to L & T were attended. Since these trials are generally satisfactory as per Clause Nos. 70.2 and 70.3, all the commissioned equipments under the contract of 2M Part-A are taken over by MSEB for regular operation and maintenance from 10th June, 1994 as per Clause No.70.4 of Contract Agreement Vol.I. The appellant wrote to the first respondent on 21-2-1994 that the plant was completed and so all Bank Guarantees have served their contractual requirements.On a perusal of the relevant clauses in the contract, executed between the appellants and the first respondent, and the communication of the first respondent dated 10-6-1994, it is fairly clear that the stipulations or conditions mentioned as per Clauses 70.2, 70.3 and 70.4 have been successfully fulfilled and the Plant was admittedly taken over by the first respondent. The Guarantee given by the Citi Bank. N.A. dated 10th May, 1989 appearing in Volume II at pages 122 to 126 will ensure only till successful completion of the trial operations and the plant is taken over. That event having ensued, the invocation of the Guarantee given by the Citi Bank dated 10-5-1985 in the sum of Rs.2.72 crores is not encashable on its terms and in order to prevent irretrievable injustice, an injunction as prayed for, to respondents 1 and 4 deserves to be issued on that score. The Court below was in error in not doing so. We hereby restrain respondents 1 and 4 from invoking the Bank Guarantee aforesaid. 12. But item No.5 partial release of retention money, for which the second respondent. Standard Chartered Bank has given a Bank Guarantee for Rs.1,12,00,000 (Rs.1.12 crores) stands on a different footing. The relevant Guarantee is contained in paper book Volume II at pages 134 to 138. The first respondent made an ad hoc payment of Rs.1.11 crores out of the total retention amount for which the Guarantee was furnished by the Standard Chartered Bank. It is an unequivocal and unconditional Guarantee. We hold that no fraud or irretrievable injustice has been made out by the appellant. The Court below was justified in declining to issue an order of injunction on this count. 13. The last item is covered by the Guarantee specified as No.4 hereinabove. It was furnished by the Bank of Baroda as a security against liquidated damages. The Guarantee is contained in paper book Volume II at Pages 129-131. 14. The Bank has given Guarantee for Rs.6.13 crores against the liquidated damages recoverable by the first respondent-Board, from the appellant. The relevant clauses regarding levy of liquidated damages is contained at pages 99 and 100 of the paper book. (Clause 75.01), to the following effect : 75.01 If the Contractor fails to complete the works as per the Clause 72.01, items 1, 2 and 3 within a period of 25 months from the date of letter of intent or within any extension of time granted by the owner then the liquidated damages shall be levied by the Owner on the Contractor at the rate of 1/2% (one half of one percent) per week of delay of the contract price for the works limited to 10% (ten percent) of the contract price of the works. Appellants Counsel argued that before invoking the Bank Guarantee the first respondent should have levied the liquidated damages and only for the sum so determined, and intimated to the appellant, the Bank Guarantee can be invoked. It was further argued that the Guarantee was due for expiry on 26-9-1994 and it has been invoked after the expiry of the said period. There is no force in the above pleas. It is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight crores - much more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated 14-9-1994, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on 26-9-1994, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without substance.
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be treated as notice for encashment (Vol.II pages 33 to 34 of the paper book). We are of the view that the invocation of the Guarantee is in time. We hold that in the light of the disputes pending before the Arbitrator, the Court below was justified in declining to grant an injunction against the invocation of the Bank Guarantee on this countThe appellant wrote to the first respondent on4 that the plant was completed and so all Bank Guarantees have served their contractual requirements.On a perusal of the relevant clauses in the contract, executed between the appellants and the first respondent, and the communication of the first respondent dated, it is fairly clear that the stipulations or conditions mentioned as per Clauses 70.2, 70.3 and 70.4 have been successfully fulfilled and the Plant was admittedly taken over by the first respondent. The Guarantee given by the Citi Bank. N.A. dated 10th May, 1989 appearing in Volume II at pages 122 to 126 will ensure only till successful completion of the trial operations and the plant is taken over. That event having ensued, the invocation of the Guarantee given by the Citi Bank dated5 in the sum of Rs.2.72 crores is not encashable on its terms and in order to prevent irretrievable injustice, an injunction as prayed for, to respondents 1 and 4 deserves to be issued on that score. The Court below was in error in not doing so. We hereby restrain respondents 1 and 4 from invoking the Bank Guarantee aforesaid12. But item No.5 partial release of retention money, for which the second respondent. Standard Chartered Bank has given a Bank Guarantee for Rs.1,12,00,000 (Rs.1.12 crores) stands on a different footing. The relevant Guarantee is contained in paper book Volume II at pages 134 to 138. The first respondent made an ad hoc payment of Rs.1.11 crores out of the total retention amount for which the Guarantee was furnished by the Standard Chartered Bank. It is an unequivocal and unconditional Guarantee. We hold that no fraud or irretrievable injustice has been made out by the appellant. The Court below was justified in declining to issue an order of injunction on this count14. The Bank has given Guarantee for Rs.6.13 crores against the liquidated damages recoverable by the first, from the appellant. The relevant clauses regarding levy of liquidated damages is contained at pages 99 and 100 of the paper book. (Clause 75.01), to the following effect :75.01 If the Contractor fails to complete the works as per the Clause 72.01, items 1, 2 and 3 within a period of 25 months from the date of letter of intent or within any extension of time granted by the owner then the liquidated damages shall be levied by the Owner on the Contractor at the rate of 1/2% (one half of one percent) per week of delay of the contract price for the works limited to 10% (ten percent) of the contract price of the worksAppellants Counsel argued that before invoking the Bank Guarantee the first respondent should have levied the liquidated damages and only for the sum so determined, and intimated to the appellant, the Bank Guarantee can be invoked. It was further argued that the Guarantee was due for expiry on4 and it has been invoked after the expiry of the said period.There is no force in the above pleas. It is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight croresmuch more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without substanceIt is common ground that the arbitration proceeding for resolving the dispute between the parties (appellant and the respondent) is pending before the Arbitrator. The parties are at issue as to whether the Plant was completed in time or was delayed. They are blaming each other for the delay. That is a matter to be adjudicated in the proceedings. It is also brought to our notice that the first respondent has claimed liquidated damages as per Clause 75.01 of the contract of more than eight croresmuch more than the amount of Rs.6.13 crores guaranteed. Since the decision in the arbitration proceedings has an impact on this aspect, we are of the view that no prima facie case of fraud of irretrievable injustice is made out to restrain respondents 1 and 5 from invoking the Bank Guarantee. Perusal of the communication dated, sent by the first respondent to the appellant and also to the Bank of Baroda appearing in paper book Volume I at pages 35 to 36, will show that a request to extend the validity of the Bank Guarantee which was to expire on, was made and if not so done, the communication was to be treated as notice for encashment of the Bank Guarantee. The plea that the invocation was not in proper time is also without
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Union Of India, Vs. Motilal Padampat Sugar Mills Co. (P) Ltd | Singh, (1906) 34. Ind App 27 (PC)."9. In view of this decision we must overrule the contention, of the learned counsel on this point because the Tribunal has found that the Railway was ready with the required evidence and no prejudice had been caused to it.10. Section 41(1)(c) of the Indian Railways Act, 1890, reads. as follows:"41 (1) Any complaint that a railway administration-(a) is contravening the provisions of Section 28, or(b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or(c) is levying any other charge which is unreasonable may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter."Sections 29 (1) and 29 (2) read thus:"29 (1) The Central Government may by general or special order fix maximum and minimum rates for the whole or any part of a railway and prescribe the conditions in which such rates will apply;(2) The Central Government may, by a like order, fix the rates of any other charges for the whole or any part of a railway and prescribe the conditions in which such rates of charges shall apply."The word "rate" is defined in S. 2 (13) thus:"rate" includes any fare, charge or other payment for the carriage of any passenger, animal or goods."11. The learned counsel for the appellant contends that this Court in 1967-3 SCR 219 = (AIR 1968 SC 22 ). correlated Section 41 (1) (c) to "any other charges" mentioned in Section 29 (2), and if the definition of the word "rate" is applied to Section 29 (2) it would mean that only charges for carriage of goods and not hauling charges could be complained against under Section 41 (1) (c). Bhargava, J., speaking for the Court observed at p. 226 (of SCR) = (at p. 26 of AIR):"It is clear that a complaint under Section 41 (1) (b) relates to fixation of a rate relating to charges mentioned in S. 29 (1), while Section 41 (1) (c) relates to a complaint in respect of any other charge mentioned in, Section 29 (2). It appears to us, in these circumstances, that the expression "any other charge" used in Section 29 (2) and Section 41 (1) (c) cannot be given the narrow meaning of covering a charge in respect of the statutory duty of the railway so as to exclude charges made or levied by the Railway for other services."After giving various reasons, Bhargava, J., concluded:"It is enough to hold for the purposes of this case that at least the charges for carriage of goods from parts of the rail- way to points or places, not forming part of the railway, will certainly be covered by the expression "any other charge" used in Section 41 (1) (c), so that the complaint in the present case was competently entertained by the Tribunal."12. It is true that the argument sought to be raised now has not been dealt with before, but it seems to us that the answer to this is simple. The definition of "rate" cannot be applied to the expression "rates of any other charges". Here the word "rates" merely means the scale or amount of any other charges. The definition of the word "rate" cannot possibly be applied to Section 29 (2) of the Act.13. Coming to the third point, the Tribunal after reviewing the evidence came to the following conclusion:"From the above discussions of the evidence, it is clear that the goods consigned to the complainants mills and despatched from the mills cannot be effectively handled at the goods shed siding without the use of the assisted siding. Under the existing facilities at the station it is practically impossible to deal with the complainants traffic at the goods shed. Any attempt in that direction would involve very heavy expenditure on the part of the railway and would also involve larger time and work as compared. with time and labour involved in handling this traffic at the assisted siding. In other words, by handling complainants, traffic at the assisted siding the railway is really incurring less of cost and less of work than it would have to incur in attempting to deal with the traffic at the goods shed siding.... Additional charge can be levied only for any special or extra service that may be rendered in any particular instance. The services rendred by the respondent railway in connection with the handling of complainants goods traffic at the assisted siding cannot be said to be any special or extra service because the services rendered in that connection have been found to be definitely less than the services which the respondent railway had to render for handling these goods at the goods shed siding as a statutory obligation even on the freight levied from the complainants. In view of the conditions prevailing at Majhowlia station the railway is really in an advantageous position, financially and otherwise, in handling the complainants goods at the assisted siding instead of at the goods shed siding. It follows, therefore, that the respondent railway is not entitled to levy any charge, in addition to the freight already levied, for the handling of the complainants goods at the assisted siding at this station which involves only a portion of the service which the railway is obliged to render in handling these goods at the goods shed siding. In other words the claim for the haulage charge for the shunting operation done at the assisted siding is unjustified and unsustainable."14. This is a finding of fact made by the Tribunal and no reason has been shown for displacing this pure finding of fact. The Tribunal has mentioned ample evidence from which it could reasonably come to the conclusion arrived at by it. It must be remembered that we are not sitting as a regular court of appeal from decision of the Tribunal, and in such cases we do not ordinarily go into questions of fact. | 0[ds]9. In view of this decision we must overrule the contention, of the learned counsel on this point because the Tribunal has found that the Railway was ready with the required evidence and no prejudice had been caused to it.It is true that the argument sought to be raised now has not been dealt with before, but it seems to us that the answer to this is simple. The definition of "rate" cannot be applied to the expression "rates of any other charges". Here the word "rates" merely means the scale or amount of any other charges. The definition of the word "rate" cannot possibly be applied to Section 29 (2) of the Act.This is a finding of fact made by the Tribunal and no reason has been shown for displacing this pure finding of fact. The Tribunal has mentioned ample evidence from which it could reasonably come to the conclusion arrived at by it. It must be remembered that we are not sitting as a regular court of appeal from decision of the Tribunal, and in such cases we do not ordinarily go into questions of fact. | 0 | 2,807 | 214 | ### 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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Singh, (1906) 34. Ind App 27 (PC)."9. In view of this decision we must overrule the contention, of the learned counsel on this point because the Tribunal has found that the Railway was ready with the required evidence and no prejudice had been caused to it.10. Section 41(1)(c) of the Indian Railways Act, 1890, reads. as follows:"41 (1) Any complaint that a railway administration-(a) is contravening the provisions of Section 28, or(b) is charging for the carriage of any commodity between two stations a rate which is unreasonable, or(c) is levying any other charge which is unreasonable may be made to the Tribunal, and the Tribunal shall hear and decide any such complaint in accordance with the provisions of this Chapter."Sections 29 (1) and 29 (2) read thus:"29 (1) The Central Government may by general or special order fix maximum and minimum rates for the whole or any part of a railway and prescribe the conditions in which such rates will apply;(2) The Central Government may, by a like order, fix the rates of any other charges for the whole or any part of a railway and prescribe the conditions in which such rates of charges shall apply."The word "rate" is defined in S. 2 (13) thus:"rate" includes any fare, charge or other payment for the carriage of any passenger, animal or goods."11. The learned counsel for the appellant contends that this Court in 1967-3 SCR 219 = (AIR 1968 SC 22 ). correlated Section 41 (1) (c) to "any other charges" mentioned in Section 29 (2), and if the definition of the word "rate" is applied to Section 29 (2) it would mean that only charges for carriage of goods and not hauling charges could be complained against under Section 41 (1) (c). Bhargava, J., speaking for the Court observed at p. 226 (of SCR) = (at p. 26 of AIR):"It is clear that a complaint under Section 41 (1) (b) relates to fixation of a rate relating to charges mentioned in S. 29 (1), while Section 41 (1) (c) relates to a complaint in respect of any other charge mentioned in, Section 29 (2). It appears to us, in these circumstances, that the expression "any other charge" used in Section 29 (2) and Section 41 (1) (c) cannot be given the narrow meaning of covering a charge in respect of the statutory duty of the railway so as to exclude charges made or levied by the Railway for other services."After giving various reasons, Bhargava, J., concluded:"It is enough to hold for the purposes of this case that at least the charges for carriage of goods from parts of the rail- way to points or places, not forming part of the railway, will certainly be covered by the expression "any other charge" used in Section 41 (1) (c), so that the complaint in the present case was competently entertained by the Tribunal."12. It is true that the argument sought to be raised now has not been dealt with before, but it seems to us that the answer to this is simple. The definition of "rate" cannot be applied to the expression "rates of any other charges". Here the word "rates" merely means the scale or amount of any other charges. The definition of the word "rate" cannot possibly be applied to Section 29 (2) of the Act.13. Coming to the third point, the Tribunal after reviewing the evidence came to the following conclusion:"From the above discussions of the evidence, it is clear that the goods consigned to the complainants mills and despatched from the mills cannot be effectively handled at the goods shed siding without the use of the assisted siding. Under the existing facilities at the station it is practically impossible to deal with the complainants traffic at the goods shed. Any attempt in that direction would involve very heavy expenditure on the part of the railway and would also involve larger time and work as compared. with time and labour involved in handling this traffic at the assisted siding. In other words, by handling complainants, traffic at the assisted siding the railway is really incurring less of cost and less of work than it would have to incur in attempting to deal with the traffic at the goods shed siding.... Additional charge can be levied only for any special or extra service that may be rendered in any particular instance. The services rendred by the respondent railway in connection with the handling of complainants goods traffic at the assisted siding cannot be said to be any special or extra service because the services rendered in that connection have been found to be definitely less than the services which the respondent railway had to render for handling these goods at the goods shed siding as a statutory obligation even on the freight levied from the complainants. In view of the conditions prevailing at Majhowlia station the railway is really in an advantageous position, financially and otherwise, in handling the complainants goods at the assisted siding instead of at the goods shed siding. It follows, therefore, that the respondent railway is not entitled to levy any charge, in addition to the freight already levied, for the handling of the complainants goods at the assisted siding at this station which involves only a portion of the service which the railway is obliged to render in handling these goods at the goods shed siding. In other words the claim for the haulage charge for the shunting operation done at the assisted siding is unjustified and unsustainable."14. This is a finding of fact made by the Tribunal and no reason has been shown for displacing this pure finding of fact. The Tribunal has mentioned ample evidence from which it could reasonably come to the conclusion arrived at by it. It must be remembered that we are not sitting as a regular court of appeal from decision of the Tribunal, and in such cases we do not ordinarily go into questions of fact.
### Response:
0
### Explanation:
9. In view of this decision we must overrule the contention, of the learned counsel on this point because the Tribunal has found that the Railway was ready with the required evidence and no prejudice had been caused to it.It is true that the argument sought to be raised now has not been dealt with before, but it seems to us that the answer to this is simple. The definition of "rate" cannot be applied to the expression "rates of any other charges". Here the word "rates" merely means the scale or amount of any other charges. The definition of the word "rate" cannot possibly be applied to Section 29 (2) of the Act.This is a finding of fact made by the Tribunal and no reason has been shown for displacing this pure finding of fact. The Tribunal has mentioned ample evidence from which it could reasonably come to the conclusion arrived at by it. It must be remembered that we are not sitting as a regular court of appeal from decision of the Tribunal, and in such cases we do not ordinarily go into questions of fact.
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PR. COMMISSIONER OF INCOME TAX 6 Vs. NOKIA INDIA PVT. LTD | Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed against the final judgment and order dated 21.04.2017 passed by the High Court of Delhi at New Delhi in ITA No.854 of 2016 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein.3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.4. By impugned order, the Division Bench of the High Court dismissed the Revenues (appellant herein) appeal filed under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) on the ground that it did not involve any substantial question of law within the meaning of Section 260-A of the Act.5. In other words, the High Court was of the view that since the appeal did not involve any substantial question of law, it deserves dismissal in limine.6. The appellant is the Revenue (Commissioner of Income Tax) and the respondent is an assessee. The issue arises out of an assessment year (1999-2000).7. The issue essentially relates to legality and correctness of the notice issued by the Assessing Officer (AO) to the respondent under Section 148 of the Act and to the consequential determination made by the AO in the assessment order for which the impugned notice was issued to the respondent.8. The objections raised by the respondent (assessee) to the notice contending inter alia that since the impugned notice was based on "change of the opinion" and hence bad in law was upheld by the ITAT resulting in allowing the respondents appeal and further by dismissing the Revenues appeal by the High Court. The Revenue has felt aggrieved by the order of the High Court dismissing their appeal in limine and has filed the present appeal by way of special leave in this Court.9. The short question, which arises for consideration in this appeal, is whether the High Court was right in dismissing the Revenues appeal in limine holding that it did not involve any substantial question of law.10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the view that the High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law. We are, therefore, constrained to allow this appeal, set aside the impugned order and remand the case to the High Court for deciding the appellant’s appeal afresh on merits in accordance with law.11. In our considered view, the following substantial questions of law do arise in this appeal filed by the Revenue (appellant herein) under Section 260-A of the Act in the High Court against the order dated 03.06.2016 passed by the ITAT in Appeal No. 1870/DEL/2010 and the same should have been framed by the High Court for deciding the appeal on merits in accordance with law:1. Whether the ITAT was justified in holding that the notice issued by the AO under Section 148 was bad in law when admittedly the impugned notice was issued in the case where the assessment was made under Section 143(1) of the Act but not under Section 143(3) of the Act.2. Whether the ITAT was justified in holding that the notice issued under Section 148 of the Act was bad because it was based on mere change of opinion by overlooking the fact that there was no foundation to form any such opinion.3. When admittedly the notice in question satisfied the requirements of Section 148 of the Act as it stood, namely, that first, it contained the facts constituting the "reasons to believe" and second, it furnished the necessary details for assessing the escaped income of the assessee, whether the ITAT was still justified in declaring the notice as being bad in law without taking into consideration any of these admitted facts.4. In case, if the notice is held proper and legal, whether the finding recorded by the ITAT on the merits of the case on each item, which is subject matter of the notice, is legally sustainable.12. In our considered view, the aforementioned four questions framed need to be answered by the High Court on their respective merits while deciding the appeal filed by the Revenue (appellant herein) under Section 260-A of the Act.13. We are, therefore, of the view that such order is not legally sustainable in law and hence deserves to be set aside. | 1[ds]10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the view that the High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law. We are, therefore, constrained to allow this appeal, set aside the impugned order and remand the case to the High Court for deciding theIn our considered view, the aforementioned four questions framed need to be answered by the High Court on their respective merits while deciding the appeal filed by the Revenue (appellant herein) under Sectionof the Act.13. We are, therefore, of the view that such order is not legally sustainable in law and hence deserves to be set aside. | 1 | 817 | 145 | ### 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:
Abhay Manohar Sapre, J.1. Leave granted.2. This appeal is filed against the final judgment and order dated 21.04.2017 passed by the High Court of Delhi at New Delhi in ITA No.854 of 2016 whereby the Division Bench of the High Court dismissed the appeal filed by the appellant herein.3. A few facts need mention hereinbelow for the disposal of this appeal, which involves a short point.4. By impugned order, the Division Bench of the High Court dismissed the Revenues (appellant herein) appeal filed under Section 260-A of the Income Tax Act, 1961 (hereinafter referred to as “the Act”) on the ground that it did not involve any substantial question of law within the meaning of Section 260-A of the Act.5. In other words, the High Court was of the view that since the appeal did not involve any substantial question of law, it deserves dismissal in limine.6. The appellant is the Revenue (Commissioner of Income Tax) and the respondent is an assessee. The issue arises out of an assessment year (1999-2000).7. The issue essentially relates to legality and correctness of the notice issued by the Assessing Officer (AO) to the respondent under Section 148 of the Act and to the consequential determination made by the AO in the assessment order for which the impugned notice was issued to the respondent.8. The objections raised by the respondent (assessee) to the notice contending inter alia that since the impugned notice was based on "change of the opinion" and hence bad in law was upheld by the ITAT resulting in allowing the respondents appeal and further by dismissing the Revenues appeal by the High Court. The Revenue has felt aggrieved by the order of the High Court dismissing their appeal in limine and has filed the present appeal by way of special leave in this Court.9. The short question, which arises for consideration in this appeal, is whether the High Court was right in dismissing the Revenues appeal in limine holding that it did not involve any substantial question of law.10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the view that the High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law. We are, therefore, constrained to allow this appeal, set aside the impugned order and remand the case to the High Court for deciding the appellant’s appeal afresh on merits in accordance with law.11. In our considered view, the following substantial questions of law do arise in this appeal filed by the Revenue (appellant herein) under Section 260-A of the Act in the High Court against the order dated 03.06.2016 passed by the ITAT in Appeal No. 1870/DEL/2010 and the same should have been framed by the High Court for deciding the appeal on merits in accordance with law:1. Whether the ITAT was justified in holding that the notice issued by the AO under Section 148 was bad in law when admittedly the impugned notice was issued in the case where the assessment was made under Section 143(1) of the Act but not under Section 143(3) of the Act.2. Whether the ITAT was justified in holding that the notice issued under Section 148 of the Act was bad because it was based on mere change of opinion by overlooking the fact that there was no foundation to form any such opinion.3. When admittedly the notice in question satisfied the requirements of Section 148 of the Act as it stood, namely, that first, it contained the facts constituting the "reasons to believe" and second, it furnished the necessary details for assessing the escaped income of the assessee, whether the ITAT was still justified in declaring the notice as being bad in law without taking into consideration any of these admitted facts.4. In case, if the notice is held proper and legal, whether the finding recorded by the ITAT on the merits of the case on each item, which is subject matter of the notice, is legally sustainable.12. In our considered view, the aforementioned four questions framed need to be answered by the High Court on their respective merits while deciding the appeal filed by the Revenue (appellant herein) under Section 260-A of the Act.13. We are, therefore, of the view that such order is not legally sustainable in law and hence deserves to be set aside.
### Response:
1
### Explanation:
10. Having heard the learned counsel for the parties and on perusal of the record of the case, we are of the view that the High Court was not justified in dismissing the appeal on the ground that the appeal did not involve any substantial question of law. We are, therefore, constrained to allow this appeal, set aside the impugned order and remand the case to the High Court for deciding theIn our considered view, the aforementioned four questions framed need to be answered by the High Court on their respective merits while deciding the appeal filed by the Revenue (appellant herein) under Sectionof the Act.13. We are, therefore, of the view that such order is not legally sustainable in law and hence deserves to be set aside.
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THE DIRECTOR, DEPARTMENT OF ARCHAEOLOGY AND MUSEUMS, JAIPUR & ANR Vs. ASHISH GAUTAM & ORS | of Access Control and Security System; (vi) Improvement of Tourist Amenities; and (vii) Improvement of Street Furniture, Information Signage System. The estimated total expenditure of the above-proposed works is Rs.368 lacs. The Tourism Development Plan also includes details of projects and objectives, introduction, various photographs, the scope of work, process and assumptions, project conservation scope, architectural features, spatial description, pavilion plan, internal and external features, details of wall paintings and construction materials and techniques used. The significance of the site mentioned is as follows: 3 SIGNIFICANCE OF THE SITE 3.1 CULTURAL SIGNIFICANCE Sisodia Rani ka Bagh is mostly famous for its architectural heritage and its intricate paintings depicting the life of Lord Krishna and Radha. This palace holds a very important position as it belongs to the Rajput Rani of the sisodias and also this was used as a recreational palace by the rani, gives the glimpse of the personal life of a queen of the 18th century, which is mostly overlooked as we always talk about the lives of the kings and not the queens. According to the locals, weddings use to take place there, and the whole garden area use to be the gathering ground. The baoli and space next to the baoli acted as the kitchen area for the same. Another very important aspect of the palace is that the excellent use of rain water for the recreational purpose can be seen and learnt from. The mechanism for the flow of water was natural slope and water channels were located all through the length and width of the garden to even be used for the watering purpose of the plantation on the site. This practice holds a very important place for the people of Jaipur, due to its climate and scanty rainfalls, saving and reusing rain water was an ardent practice of the people there. 3.2 ARCHITECTURAL SIGNIFICANCE The Sisodia Rani ka Bagh is an example of Rajput style of architecture with elements from Mughal style of architecture for ex. Char Bagh arrangement of the garden is from Mughal style, Chatteris, jaalis are from Rajput styles and stone brackets from Rajput architecture. The characteristics like pan patti cornices, intricate jaalis and the articulated frescos add to the charm of the otherwise simple structure of Rajput style. This palace also have features like cusp arched passages, true vault construction supporting the bangaldhar ceilings, domical roofs supported by intricate marble columns standing on the stone finished floors overlooking the rooms and the mezzanine areas giving the visual pleasure to the on looker. The stone jaalis, marble floorings, stone chhatris, tibaris, burj, stone railings, frescos and the intricate details of the wooden doors are a pleasure for the people. 3.3 ECONOMIC SIGNIFICANCE Heritage tourism is one of the major economic lifelines of the town of Jaipur. Hence conserving the built heritage of Jaipur is necessary to safeguard the architectural heritage of the region and to foster tourism which is a major economic activity of the town. The tourism can grow with proper planning through a more sustainable and environmentally conscious development of basic tourist facilities. These structures form a part of the fabric of the town. The tourists generally come from the neighbouring countries and states by buses, trains and by air as it is a part of the golden triangle of tourism with Agra and Delhi. As discussed earlier there are many heritage sites in Jaipur and Sisodia Rani ka Bagh is also a part of that culture and the historical background that Jaipur has grown up from. Jaipur sees many tourists all over the year and mostly from October to March, as its the winter season and it is very favourable for the tourists from other countries. Jaipur alone witness an inflow of international tourists ranging from 25%-35% according to the Ministry of Tourism Rajasthan. The details of the works done in the last five years have been mentioned. Plan objectives are specified in Part 5 of the Tourism Development Plan. The conditions of the site, factors affecting the property, project proposals, scope of works, and drawings are also mentioned in detail. 8. At present, the Monument is an archaeological monument and was being used for earning the revenue by organising various functions. In the process, it was also maintained. The Monument is adjacent to Jaipur-Agra highway, it has historical importance and is entirely enclosed by a pakka structure. It does not disturb the forest area though the Monument may be recorded as forest. It would not be appropriate to permit the use of the Monument to hold various functions during the night after 8.00 P.M. The tourist timings are 8.00 A.M. to 8.00 P.M. During that time, considering the importance of the historical Monument and it is in encircled structure by wall and its potentiality there cannot be any objection for its being used for multi- purpose appropriate activities. At the same time, there is in place a noise restriction, the same has to be strictly observed. Besides, the Government has imposed several other restrictions in the area. In addition to that, it is also to be ensured that no fireworks take place in and around the Monument to prevent noise and air pollution. Restriction on the use of laser light is also required. Beautification of Garden with ornamental plants of rare breed and flowering plants is also required. It is necessary to maintain and keep in order the musical and other fountains. However, the blanket ban imposed by the Tribunal was not called for as area can be used for appropriate functions and for holding events to attract tourists. No inconvenience is going to be caused in the area considering the situation of Monument. In the writ petition itself, a prayer was made pertaining to the safety and security of wildlife and not to allow laser lights, loud music and fireworks. However, it is necessary to dedicate requisite number of staff and gardeners and supervisors to look after the Garden, for that requisite steps be taken. | 1[ds]The details of the works done in the last five years have been mentioned. Plan objectives are specified in Part 5 of the Tourism Development Plan. The conditions of the site, factors affecting the property, project proposals, scope of works, and drawings are also mentioned in detail8. At present, the Monument is an archaeological monument and was being used for earning the revenue by organising various functions. In the process, it was also maintained. The Monument is adjacent to Jaipur-Agra highway, it has historical importance and is entirely enclosed by a pakka structure. It does not disturb the forest area though the Monument may be recorded as forest. It would not be appropriate to permit the use of the Monument to hold various functions during the night after 8.00 P.M. The tourist timings are 8.00 A.M. to 8.00 P.M. During that time, considering the importance of the historical Monument and it is in encircled structure by wall and its potentiality there cannot be any objection for its being used for multi- purpose appropriate activities. At the same time, there is in place a noise restriction, the same has to be strictly observed. Besides, the Government has imposed several other restrictions in the area. In addition to that, it is also to be ensured that no fireworks take place in and around the Monument to prevent noise and air pollution. Restriction on the use of laser light is also required. Beautification of Garden with ornamental plants of rare breed and flowering plants is also required. It is necessary to maintain and keep in order the musical and other fountains. However, the blanket ban imposed by the Tribunal was not called for as area can be used for appropriate functions and for holding events to attract tourists. No inconvenience is going to be caused in the area considering the situation of Monument. In the writ petition itself, a prayer was made pertaining to the safety and security of wildlife and not to allow laser lights, loud music and fireworks. However, it is necessary to dedicate requisite number of staff and gardeners and supervisors to look after the Garden, for that requisite steps be taken. | 1 | 2,309 | 403 | ### 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:
of Access Control and Security System; (vi) Improvement of Tourist Amenities; and (vii) Improvement of Street Furniture, Information Signage System. The estimated total expenditure of the above-proposed works is Rs.368 lacs. The Tourism Development Plan also includes details of projects and objectives, introduction, various photographs, the scope of work, process and assumptions, project conservation scope, architectural features, spatial description, pavilion plan, internal and external features, details of wall paintings and construction materials and techniques used. The significance of the site mentioned is as follows: 3 SIGNIFICANCE OF THE SITE 3.1 CULTURAL SIGNIFICANCE Sisodia Rani ka Bagh is mostly famous for its architectural heritage and its intricate paintings depicting the life of Lord Krishna and Radha. This palace holds a very important position as it belongs to the Rajput Rani of the sisodias and also this was used as a recreational palace by the rani, gives the glimpse of the personal life of a queen of the 18th century, which is mostly overlooked as we always talk about the lives of the kings and not the queens. According to the locals, weddings use to take place there, and the whole garden area use to be the gathering ground. The baoli and space next to the baoli acted as the kitchen area for the same. Another very important aspect of the palace is that the excellent use of rain water for the recreational purpose can be seen and learnt from. The mechanism for the flow of water was natural slope and water channels were located all through the length and width of the garden to even be used for the watering purpose of the plantation on the site. This practice holds a very important place for the people of Jaipur, due to its climate and scanty rainfalls, saving and reusing rain water was an ardent practice of the people there. 3.2 ARCHITECTURAL SIGNIFICANCE The Sisodia Rani ka Bagh is an example of Rajput style of architecture with elements from Mughal style of architecture for ex. Char Bagh arrangement of the garden is from Mughal style, Chatteris, jaalis are from Rajput styles and stone brackets from Rajput architecture. The characteristics like pan patti cornices, intricate jaalis and the articulated frescos add to the charm of the otherwise simple structure of Rajput style. This palace also have features like cusp arched passages, true vault construction supporting the bangaldhar ceilings, domical roofs supported by intricate marble columns standing on the stone finished floors overlooking the rooms and the mezzanine areas giving the visual pleasure to the on looker. The stone jaalis, marble floorings, stone chhatris, tibaris, burj, stone railings, frescos and the intricate details of the wooden doors are a pleasure for the people. 3.3 ECONOMIC SIGNIFICANCE Heritage tourism is one of the major economic lifelines of the town of Jaipur. Hence conserving the built heritage of Jaipur is necessary to safeguard the architectural heritage of the region and to foster tourism which is a major economic activity of the town. The tourism can grow with proper planning through a more sustainable and environmentally conscious development of basic tourist facilities. These structures form a part of the fabric of the town. The tourists generally come from the neighbouring countries and states by buses, trains and by air as it is a part of the golden triangle of tourism with Agra and Delhi. As discussed earlier there are many heritage sites in Jaipur and Sisodia Rani ka Bagh is also a part of that culture and the historical background that Jaipur has grown up from. Jaipur sees many tourists all over the year and mostly from October to March, as its the winter season and it is very favourable for the tourists from other countries. Jaipur alone witness an inflow of international tourists ranging from 25%-35% according to the Ministry of Tourism Rajasthan. The details of the works done in the last five years have been mentioned. Plan objectives are specified in Part 5 of the Tourism Development Plan. The conditions of the site, factors affecting the property, project proposals, scope of works, and drawings are also mentioned in detail. 8. At present, the Monument is an archaeological monument and was being used for earning the revenue by organising various functions. In the process, it was also maintained. The Monument is adjacent to Jaipur-Agra highway, it has historical importance and is entirely enclosed by a pakka structure. It does not disturb the forest area though the Monument may be recorded as forest. It would not be appropriate to permit the use of the Monument to hold various functions during the night after 8.00 P.M. The tourist timings are 8.00 A.M. to 8.00 P.M. During that time, considering the importance of the historical Monument and it is in encircled structure by wall and its potentiality there cannot be any objection for its being used for multi- purpose appropriate activities. At the same time, there is in place a noise restriction, the same has to be strictly observed. Besides, the Government has imposed several other restrictions in the area. In addition to that, it is also to be ensured that no fireworks take place in and around the Monument to prevent noise and air pollution. Restriction on the use of laser light is also required. Beautification of Garden with ornamental plants of rare breed and flowering plants is also required. It is necessary to maintain and keep in order the musical and other fountains. However, the blanket ban imposed by the Tribunal was not called for as area can be used for appropriate functions and for holding events to attract tourists. No inconvenience is going to be caused in the area considering the situation of Monument. In the writ petition itself, a prayer was made pertaining to the safety and security of wildlife and not to allow laser lights, loud music and fireworks. However, it is necessary to dedicate requisite number of staff and gardeners and supervisors to look after the Garden, for that requisite steps be taken.
### Response:
1
### Explanation:
The details of the works done in the last five years have been mentioned. Plan objectives are specified in Part 5 of the Tourism Development Plan. The conditions of the site, factors affecting the property, project proposals, scope of works, and drawings are also mentioned in detail8. At present, the Monument is an archaeological monument and was being used for earning the revenue by organising various functions. In the process, it was also maintained. The Monument is adjacent to Jaipur-Agra highway, it has historical importance and is entirely enclosed by a pakka structure. It does not disturb the forest area though the Monument may be recorded as forest. It would not be appropriate to permit the use of the Monument to hold various functions during the night after 8.00 P.M. The tourist timings are 8.00 A.M. to 8.00 P.M. During that time, considering the importance of the historical Monument and it is in encircled structure by wall and its potentiality there cannot be any objection for its being used for multi- purpose appropriate activities. At the same time, there is in place a noise restriction, the same has to be strictly observed. Besides, the Government has imposed several other restrictions in the area. In addition to that, it is also to be ensured that no fireworks take place in and around the Monument to prevent noise and air pollution. Restriction on the use of laser light is also required. Beautification of Garden with ornamental plants of rare breed and flowering plants is also required. It is necessary to maintain and keep in order the musical and other fountains. However, the blanket ban imposed by the Tribunal was not called for as area can be used for appropriate functions and for holding events to attract tourists. No inconvenience is going to be caused in the area considering the situation of Monument. In the writ petition itself, a prayer was made pertaining to the safety and security of wildlife and not to allow laser lights, loud music and fireworks. However, it is necessary to dedicate requisite number of staff and gardeners and supervisors to look after the Garden, for that requisite steps be taken.
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Khila Dhish & Others Vs. Mool Chand & Others | July, 1964 Gyanendra Kumar, J., allowed the appeal and remanded the matter to the Civil judge for decision according to law. It was held by Gyanendra Kumar, J., that the suit was within time.3. Article 89 of the Limitation Act, 1908 (Act No. 9 of 1908), was to the following effect :Description of suit Period of Time from limitation which period begins to run89. By a principal against Three When the account his agent for movable years is, during the property received by continuance of the the latter and not agency, demanded accounted for and refused or, where on such demand is made, when the agency terminates.Sections 201, 213 and 218 of the Indian Contract Act (Act No. 9 of 1872), are reproduced below :"201. Termination of agency. - An agency terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated as insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.213. Agents accounts. - An agent is bound to render accounts to his principal on demand.218. Agents duty to pay sums received for principal. - Subject to such deductions, the agent is bound to pay to his principal all sums received on his account."4. It was argued on behalf of the appellants that the suit was barred by limitation under Article 89 of the Limitation Act. It was said that Dharam Das was to manage the properties till the end of June 1941 when his agency was terminated. It was argued that the suit should have been filed within three years of that date. i. e., by 30th June, 1944. It was urged that the agency of Dharam Das had terminated when suit No. 2 of 1937 was decided by the Trial Court on 31st May, 1940 or at the latest on 29th July, 1944 when the High Court dismissed First Appeal No. 2 of 1941 arising from the decree of the lower Court. According to the appellants, the present suit should have been brought on or before 28th July, 1947 within a period of three years from the date of the termination of his agency. Section 301 of the Indian Contract Act provides that an agency is terminated by the principal revoking his authority or by the agent renouncing the business of the agency; or by the business of the agency being completed. Section 218 of the Indian Contract Act further provides that the agent is bound to pay his principal all sums received on his account. The contention of the appellants was that Dharam Das was no longer in physical management of the property on behalf of the respondents and so the agency of Dharam Das should be deemed to have terminated. We are unable to accept this argument as correct. The question as to when the agency terminates is a question of fact to be determined on the matters proved or admitted in a particular case. In the present case, Dharam Das made a statement before the Civil judge on 28th August, 1951 that he was willing to account for all the money received by him in respect of his report dated 1-2-1938 submitted by him in suit No. 2 of 1937. On the basis of the statement the Civil Judge recorded the following order"Dharam Das deft. stated that he is willing to account for all the money received by him in respect of his report dated 1-2-1938 filed today Paragraph 14. The counsel for the plffs. stated that he is agreeable to account being rendered by deft. No. 1 on the basis of the report mentioned above. The counsel for the plff. agrees that all moneys received by his client in respect of property handed over to Dharam Das on 27-1-1937 will be brought into account and if there is any excess over his own share it shall be paid back."Later on Dharam Das tried to go back on his undertaking by moving an application 32-C. The Trial Court rejected the application holding that Dharam Das did not make any reservations at the time he made his previous statement. The order of the Civil Judge dated 22nd August, 1951 states :"The applicant did not make any reservations at the time he made his statement. He agreed to render such accounts as he had for the entire period following his receiving the property and his report dated 1-2-1938 has reference to it.He confirmed his willingness to render all accounts when his counsel Shri R. C. Mowar appeared and Mr. Mowar then signed on the Court order sheet.This application is, therefore, an afterthought."5. Upon the particular facts established in the present case, we are of opinion that the agency of Dharam Das had not terminated in June 1941 or in July, 1944, but the agency continued till 21st August, 1951 when Dharam Das admitted that he was willing to account all the money received by him. It follows that the suit of the respondents instituted on 27th July, 1950 is not barred under Article 89 of the Limitation Act.6. Mr. S. P. Sinha also raised two other questions in the course of his argument. In the first place, it was contended that after the death of Dharam Das his legal representatives were not liable to account to the respondents because the liability for accounting was something personal to Dharam Das and the liability terminated with his death. Another contention was that there was no question of any accounting by Dharam Das who as the Karta of the joint Hindu family was not liable to furnish accounts. We do not wish to express any opinion at this stage on these contentions. If the appellants choose, they may press the contentions before the Trial Court which will no doubt decide them in accordance with law. | 0[ds]We are unable to accept this argument as correct. The question as to when the agency terminates is a question of fact to be determined on the matters proved or admitted in a particular case. In the present case, Dharam Das made a statement before the Civil judge on 28th August, 1951 that he was willing to account for all the money received by him in respect of his report dated 1-2-1938 submitted by him in suit No. 2 of 1937. On the basis of the statement the Civil Judge recorded the followingDas deft. stated that he is willing to account for all the money received by him in respect of his report dated 1-2-1938 filed today Paragraph 14.Upon the particular facts established in the present case, we are of opinion that the agency of Dharam Das had not terminated in June 1941 or in July, 1944, but the agency continued till 21st August, 1951 when Dharam Das admitted that he was willing to account all the money received by him. It follows that the suit of the respondents instituted on 27th July, 1950 is not barred under Article 89 of the Limitation Act. | 0 | 1,709 | 212 | ### Instruction:
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July, 1964 Gyanendra Kumar, J., allowed the appeal and remanded the matter to the Civil judge for decision according to law. It was held by Gyanendra Kumar, J., that the suit was within time.3. Article 89 of the Limitation Act, 1908 (Act No. 9 of 1908), was to the following effect :Description of suit Period of Time from limitation which period begins to run89. By a principal against Three When the account his agent for movable years is, during the property received by continuance of the the latter and not agency, demanded accounted for and refused or, where on such demand is made, when the agency terminates.Sections 201, 213 and 218 of the Indian Contract Act (Act No. 9 of 1872), are reproduced below :"201. Termination of agency. - An agency terminated by the principal revoking his authority; or by the agent renouncing the business of the agency; or by the business of the agency being completed; or by either the principal or agent dying or becoming of unsound mind; or by the principal being adjudicated as insolvent under the provisions of any Act for the time being in force for the relief of insolvent debtors.213. Agents accounts. - An agent is bound to render accounts to his principal on demand.218. Agents duty to pay sums received for principal. - Subject to such deductions, the agent is bound to pay to his principal all sums received on his account."4. It was argued on behalf of the appellants that the suit was barred by limitation under Article 89 of the Limitation Act. It was said that Dharam Das was to manage the properties till the end of June 1941 when his agency was terminated. It was argued that the suit should have been filed within three years of that date. i. e., by 30th June, 1944. It was urged that the agency of Dharam Das had terminated when suit No. 2 of 1937 was decided by the Trial Court on 31st May, 1940 or at the latest on 29th July, 1944 when the High Court dismissed First Appeal No. 2 of 1941 arising from the decree of the lower Court. According to the appellants, the present suit should have been brought on or before 28th July, 1947 within a period of three years from the date of the termination of his agency. Section 301 of the Indian Contract Act provides that an agency is terminated by the principal revoking his authority or by the agent renouncing the business of the agency; or by the business of the agency being completed. Section 218 of the Indian Contract Act further provides that the agent is bound to pay his principal all sums received on his account. The contention of the appellants was that Dharam Das was no longer in physical management of the property on behalf of the respondents and so the agency of Dharam Das should be deemed to have terminated. We are unable to accept this argument as correct. The question as to when the agency terminates is a question of fact to be determined on the matters proved or admitted in a particular case. In the present case, Dharam Das made a statement before the Civil judge on 28th August, 1951 that he was willing to account for all the money received by him in respect of his report dated 1-2-1938 submitted by him in suit No. 2 of 1937. On the basis of the statement the Civil Judge recorded the following order"Dharam Das deft. stated that he is willing to account for all the money received by him in respect of his report dated 1-2-1938 filed today Paragraph 14. The counsel for the plffs. stated that he is agreeable to account being rendered by deft. No. 1 on the basis of the report mentioned above. The counsel for the plff. agrees that all moneys received by his client in respect of property handed over to Dharam Das on 27-1-1937 will be brought into account and if there is any excess over his own share it shall be paid back."Later on Dharam Das tried to go back on his undertaking by moving an application 32-C. The Trial Court rejected the application holding that Dharam Das did not make any reservations at the time he made his previous statement. The order of the Civil Judge dated 22nd August, 1951 states :"The applicant did not make any reservations at the time he made his statement. He agreed to render such accounts as he had for the entire period following his receiving the property and his report dated 1-2-1938 has reference to it.He confirmed his willingness to render all accounts when his counsel Shri R. C. Mowar appeared and Mr. Mowar then signed on the Court order sheet.This application is, therefore, an afterthought."5. Upon the particular facts established in the present case, we are of opinion that the agency of Dharam Das had not terminated in June 1941 or in July, 1944, but the agency continued till 21st August, 1951 when Dharam Das admitted that he was willing to account all the money received by him. It follows that the suit of the respondents instituted on 27th July, 1950 is not barred under Article 89 of the Limitation Act.6. Mr. S. P. Sinha also raised two other questions in the course of his argument. In the first place, it was contended that after the death of Dharam Das his legal representatives were not liable to account to the respondents because the liability for accounting was something personal to Dharam Das and the liability terminated with his death. Another contention was that there was no question of any accounting by Dharam Das who as the Karta of the joint Hindu family was not liable to furnish accounts. We do not wish to express any opinion at this stage on these contentions. If the appellants choose, they may press the contentions before the Trial Court which will no doubt decide them in accordance with law.
### Response:
0
### Explanation:
We are unable to accept this argument as correct. The question as to when the agency terminates is a question of fact to be determined on the matters proved or admitted in a particular case. In the present case, Dharam Das made a statement before the Civil judge on 28th August, 1951 that he was willing to account for all the money received by him in respect of his report dated 1-2-1938 submitted by him in suit No. 2 of 1937. On the basis of the statement the Civil Judge recorded the followingDas deft. stated that he is willing to account for all the money received by him in respect of his report dated 1-2-1938 filed today Paragraph 14.Upon the particular facts established in the present case, we are of opinion that the agency of Dharam Das had not terminated in June 1941 or in July, 1944, but the agency continued till 21st August, 1951 when Dharam Das admitted that he was willing to account all the money received by him. It follows that the suit of the respondents instituted on 27th July, 1950 is not barred under Article 89 of the Limitation Act.
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Bibi Aisha & Ors Vs. Bihar Subai Sunni Majlis Avaqaf & Ors | is an ancient mosque known as the mosque of Mst. Bibi Mannu Khanam Jan. It is not disputed now that Mst. Bibi Mannu Khanam Jan established this mosque. There are shops, rooms, katra and other structures to the east, west and the south of the mosque. To the east of the mosque are the disputed holdings Nos. 27 and 28. On September 25, 1948 Gholam Bari filed before the Waqf Board a return in Form No. 1 under Rules 6 and 11 of the Bihar Waqfs Act, 1948. In this return he stated that the properties were given in waqf to the mosque by Mst. Bibi Mannu Khanam Jan under the deed of waqf dated August 20, 1827. With this return he filed an English translation of the waqf deed. The translation was attested by him. P. W. 5 Mehdi Hasan, the Nazir of the Waqf Board proved that Gholam Bari also filed the original waqfnama together with its copy in Persian. The copy bore the following endorsement signed by Gholam Bari. "The copy corresponds to the original." The original waqfnama was returned to Gholam Bari and the copy was retained in the office of the Waqf Board. At the trial Gholam Bari did not produce the original deed. Accordingly the copy of the deed and its translation were exhibited.3. The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiffs custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiffs office.Under Section 65 (a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under S. 65 (a) any secondary evidence of the contents of the document is admissible.In the present case the conditions of S. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that Cl. (f) of S. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence.There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).In the case of A Collision Between The Ava, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of Section 65 and the failure to produce it after notice attracted Cl. (a).Clause (f) of Section 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:"By S. 65 in cases under Cls. (a) and (c) any secondary evidence is admissible; in cases under Cls. (e) and (f) only a certified copy. The present case falls under Cl. (a) or (c) and also under (f). In such a case which rule applies? I think the words, "In cases (a), (c) and (d) any secondary evidence is admissible," are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received."4. The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors-in-title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948; in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis-e-Awaqf. Other documents and admissions also clearly show that the disputed holdings are waqf properties.5. The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry Office on 21st Rabiul Awal, 1233 A. H. The year 1233 is evidently a mistake for 1243. The deed was executed on 19th Muharram 1243 A. H. corresponding to 20th August 1827. No copy of this deed is now found in the records of the registration office. It appears that the document was presented for registration under Regulation XXXIX of 1793. Under that Regulation the Quazis were required to keep copies of all deeds and other papers which they might draw up or attest, to keep a list o such papers and to deliver the list and papers to their successors. The Regulation made no provision for the maintenance of a proper register book. The disputed waqf deed was registered in 1827. At this distance of time no copy of the deed is traceable in the registration office. But from other unimpeachable evidence, it is satisfactorily established that Mst. Bibi Mannu Khanam Jan executed the waqf deed dated August 20, 1827 and that the disputed holdings are waqf properties. In this view of the matter it is not disputed that the courts below rightly decreed the suit. | 0[ds]4. The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors-in-title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948; in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis-e-Awaqf. Other documents and admissions also clearly show that the disputed holdings are waqf properties.5. The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry Office on 21st Rabiul Awal, 1233 A. H. The year 1233 is evidently a mistake for 1243. The deed was executed on 19th Muharram 1243 A. H. corresponding to 20th August 1827. No copy of this deed is now found in the records of the registration office. It appears that the document was presented for registration under Regulation XXXIX of 1793. Under that Regulation the Quazis were required to keep copies of all deeds and other papers which they might draw up or attest, to keep a list o such papers and to deliver the list and papers to their successors. The Regulation made no provision for the maintenance of a proper register book. The disputed waqf deed was registered in 1827. At this distance of time no copy of the deed is traceable in the registration office. But from other unimpeachable evidence, it is satisfactorily established that Mst. Bibi Mannu Khanam Jan executed the waqf deed dated August 20, 1827 and that the disputed holdings are waqf properties. In this view of the matter it is not disputed that the courts below rightly decreed the suit. | 0 | 1,370 | 357 | ### Instruction:
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is an ancient mosque known as the mosque of Mst. Bibi Mannu Khanam Jan. It is not disputed now that Mst. Bibi Mannu Khanam Jan established this mosque. There are shops, rooms, katra and other structures to the east, west and the south of the mosque. To the east of the mosque are the disputed holdings Nos. 27 and 28. On September 25, 1948 Gholam Bari filed before the Waqf Board a return in Form No. 1 under Rules 6 and 11 of the Bihar Waqfs Act, 1948. In this return he stated that the properties were given in waqf to the mosque by Mst. Bibi Mannu Khanam Jan under the deed of waqf dated August 20, 1827. With this return he filed an English translation of the waqf deed. The translation was attested by him. P. W. 5 Mehdi Hasan, the Nazir of the Waqf Board proved that Gholam Bari also filed the original waqfnama together with its copy in Persian. The copy bore the following endorsement signed by Gholam Bari. "The copy corresponds to the original." The original waqfnama was returned to Gholam Bari and the copy was retained in the office of the Waqf Board. At the trial Gholam Bari did not produce the original deed. Accordingly the copy of the deed and its translation were exhibited.3. The Trial Court and in the High Court Misra J. accepted the testimony of Mehdi Hasan and held that the copy of the original waqfnama was admissible in evidence. We agree with this finding. Tarkeshwarnath J. ruled that the copy was not admissible mainly on the ground that paragraph 7 of the plaint stated that the deed of waqf was in the plaintiffs custody. We agree with Misra J. that the averment in the plaint should be regarded as a general statement referring to the true copy which was left in the plaintiffs office.Under Section 65 (a) of the Evidence Act secondary evidence may be given of the existence, or contents of a document when the original is shown or appears to be in the possession or power of the person against whom the document is sought to be proved, and when after the notice mentioned in Section 66, such person does not produce it. Where the case falls under S. 65 (a) any secondary evidence of the contents of the document is admissible.In the present case the conditions of S. 65 (a) were satisfied. The plain copy of the waqf was therefore admissible. On behalf of the appellant it was argued that Cl. (f) of S. 65 was applicable and that as the certified copy of the deed dated August 20, 1827 was permitted by the Evidence Act to be given in evidence a certified copy alone was admissible in evidence.There is no substance in this contention. If the case falls under clause (a) any secondary evidence of the document is admissible, though the case may also fall under clause (f). Clause (a) is not controlled by clause (f).In the case of A Collision Between The Ava, (1879) ILR 5 Cal 568 a question arose as to whether secondary evidence could be given of the contents of a certificate granted by the Board of Trade. The loss of the document attracted Cl. (c) of Section 65 and the failure to produce it after notice attracted Cl. (a).Clause (f) of Section 65 was also applicable. Wilson J. ruled that a certified copy need not be produced and any secondary evidence was admissible. We agree with this decision. Wilson J. said:"By S. 65 in cases under Cls. (a) and (c) any secondary evidence is admissible; in cases under Cls. (e) and (f) only a certified copy. The present case falls under Cl. (a) or (c) and also under (f). In such a case which rule applies? I think the words, "In cases (a), (c) and (d) any secondary evidence is admissible," are too clear and too strong to be controlled by anything that follows, and that, therefore, in this case any secondary evidence might be received."4. The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors-in-title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948; in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis-e-Awaqf. Other documents and admissions also clearly show that the disputed holdings are waqf properties.5. The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry Office on 21st Rabiul Awal, 1233 A. H. The year 1233 is evidently a mistake for 1243. The deed was executed on 19th Muharram 1243 A. H. corresponding to 20th August 1827. No copy of this deed is now found in the records of the registration office. It appears that the document was presented for registration under Regulation XXXIX of 1793. Under that Regulation the Quazis were required to keep copies of all deeds and other papers which they might draw up or attest, to keep a list o such papers and to deliver the list and papers to their successors. The Regulation made no provision for the maintenance of a proper register book. The disputed waqf deed was registered in 1827. At this distance of time no copy of the deed is traceable in the registration office. But from other unimpeachable evidence, it is satisfactorily established that Mst. Bibi Mannu Khanam Jan executed the waqf deed dated August 20, 1827 and that the disputed holdings are waqf properties. In this view of the matter it is not disputed that the courts below rightly decreed the suit.
### Response:
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### Explanation:
4. The existence of the deed of waqf dated August 20, 1827 is proved by numerous admissions made by Gholam Bari and his predecessors-in-title. The existence of the deed was admitted in a petition filed by Bibi Zaibunnisa before the District Judge, Patna on January 13, 1928, in the return filed before the plaintiff by Gholam Bari on September 25, 1948; in the petition dated February 15, 1949 and a statement dated March 21, 1949 filed by him before the President of the Bihar Subai Sunni Majlis-e-Awaqf. Other documents and admissions also clearly show that the disputed holdings are waqf properties.5. The copy of the waqf deed shows that Bibi Mannu Khanam Jan appeared before the Darulquazaya Azimabad for admitting the execution and making a declaration and the Quazi signed the deed and put the seal of the Registry Office on 21st Rabiul Awal, 1233 A. H. The year 1233 is evidently a mistake for 1243. The deed was executed on 19th Muharram 1243 A. H. corresponding to 20th August 1827. No copy of this deed is now found in the records of the registration office. It appears that the document was presented for registration under Regulation XXXIX of 1793. Under that Regulation the Quazis were required to keep copies of all deeds and other papers which they might draw up or attest, to keep a list o such papers and to deliver the list and papers to their successors. The Regulation made no provision for the maintenance of a proper register book. The disputed waqf deed was registered in 1827. At this distance of time no copy of the deed is traceable in the registration office. But from other unimpeachable evidence, it is satisfactorily established that Mst. Bibi Mannu Khanam Jan executed the waqf deed dated August 20, 1827 and that the disputed holdings are waqf properties. In this view of the matter it is not disputed that the courts below rightly decreed the suit.
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Bharat Aluminium Company Vs. Kaiser Aluminium Technical Services Inc | not strain too much to interpret an agreement between two parties as in the case of a statutory interpretation. The approach in analysing the terms of agreement should be straight and plain but at the same time cohesive and logical. 10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. Contextually, it may be noted that in the present case, the respondent had invoked the provisions of English law for the purpose of the initiation of the unsettled disputes. It has hence, while interpreting an agreement, to be kept in mind that the parties, intended to avoid impracticable and inconvenient processes and procedures in working out the agreement. Potter J. made a similar observation in Cargill International S.A. v. Bangladesh Sugar and Food Industries Corporation (1998] 1 W.L.R. 461 CA): “As Lord Goff observed in another context in Palm Shipping v. Kuwait Petroleum [1988] 1 Lloyds Rep 500 at 502: “It is not a permissible method of construction to propound a general or generally accepted principal ... (and) ... then to seek to force the provisions of the ... (the contract) ... into the straightjacket of that principle.” On the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties and to consider whether, against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.” 11. A close perusal of the terms between the parties would clearly show that the first part of Article 22 is on the law governing the contract and in the second part the parties intended to lay down the law applicable to the arbitration agreement, viz., the proper law of the agreement of arbitration. It is unnecessary that after already agreeing on the procedural law governing the arbitration in Article 17.1, the parties intended to state the same again in a separate clause within the same contract in Article 22. Therefore, the intention of the parties to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration is fairly clear from Article 22.12. Sumitomo (supra) is of no avail to the appellant. In Sumitomo (supra), there was no specific choice on the law of arbitration agreement and this court held that in absence of such choice, the law of arbitration agreement would be determined by the substantive law of the contract. That is not the case in this agreement.13. It is clear that the law applicable to arbitration agreement in the present case is English Law. Once it is found that the law governing the arbitration agreement is English Law, Part I of the Indian Arbitration Act stands impliedly excluded. This has been a long settled position and the latest judgment in Union of India v. Reliance Industries Limited and others (2015 (10) SCALE 149 )reaffirms the same. In the words of R.F. Nariman J., “20. The last paragraph of Bharat Aluminiums judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself-that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.” 14. We are hence unable to be persuaded by the persuasive argument advanced by Shri Sundaram, learned Senior Counsel appearing for the appellant that the arbitration agreement is to be governed by the Indian Law.15. Accordingly, we find no error in the view taken by the High Court that the applications filed by the appellant under Section 34 of the Indian Act are not maintainable against the two foreign awards dated 10.11.2002 and 12.11.2002 between the appellant and the respondent. | 0[ds]10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. Contextually, it may be noted that in the present case, the respondent had invoked the provisions of English law for the purpose of the initiation of the unsettled disputes. It has hence, while interpreting an agreement, to be kept in mind that the parties, intended to avoid impracticable and inconvenient processes and procedures in working out the agreement. Potter J. made a similar observation in CargillInternational S.A. v. Bangladesh Sugar and Food Industries Corporation (1998] 1 W.L.R. 461Lord Goff observed in another context in Palm Shipping v. Kuwait Petroleum [1988] 1 Lloyds Rep 500 at 502:is not a permissible method of construction to propound a general or generally accepted principal ... (and) ... then to seek to force the provisions of the ... (the contract) ... into the straightjacket of thatOn the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties and to consider whether, against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.A close perusal of the terms between the parties would clearly show that the first part of Article 22 is on the law governing the contract and in the second part the parties intended to lay down the law applicable to the arbitration agreement, viz., the proper law of the agreement of arbitration. It is unnecessary that after already agreeing on the procedural law governing the arbitration in Article 17.1, the parties intended to state the same again in a separate clause within the same contract in Article 22. Therefore, the intention of the parties to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration is fairly clear from Article 22.12. Sumitomo (supra) is of no avail to the appellant. In Sumitomo (supra), there was no specific choice on the law of arbitration agreement and this court held that in absence of such choice, the law of arbitration agreement would be determined by the substantive law of the contract. That is not the case in this agreement.13. It is clear that the law applicable to arbitration agreement in the present case is English Law. Once it is found that the law governing the arbitration agreement is English Law, Part I of the Indian Arbitration Act stands impliedly excluded. This has been a long settled position and the latest judgment in Union of India v. Reliance Industries Limited and others (2015 (10) SCALE 149 )reaffirms the same. In the words of R.F. Nariman J.The last paragraph of Bharat Aluminiums judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself-that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.We are hence unable to be persuaded by the persuasive argument advanced by Shri Sundaram, learned Senior Counsel appearing for the appellant that the arbitration agreement is to be governed by the Indian Law.15. Accordingly, we find no error in the view taken by the High Court that the applications filed by the appellant under Section 34 of the Indian Act are not maintainable against the two foreign awards dated 10.11.2002 and 12.11.2002 between the appellant and the respondent. | 0 | 2,505 | 1,041 | ### 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 strain too much to interpret an agreement between two parties as in the case of a statutory interpretation. The approach in analysing the terms of agreement should be straight and plain but at the same time cohesive and logical. 10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. Contextually, it may be noted that in the present case, the respondent had invoked the provisions of English law for the purpose of the initiation of the unsettled disputes. It has hence, while interpreting an agreement, to be kept in mind that the parties, intended to avoid impracticable and inconvenient processes and procedures in working out the agreement. Potter J. made a similar observation in Cargill International S.A. v. Bangladesh Sugar and Food Industries Corporation (1998] 1 W.L.R. 461 CA): “As Lord Goff observed in another context in Palm Shipping v. Kuwait Petroleum [1988] 1 Lloyds Rep 500 at 502: “It is not a permissible method of construction to propound a general or generally accepted principal ... (and) ... then to seek to force the provisions of the ... (the contract) ... into the straightjacket of that principle.” On the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties and to consider whether, against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.” 11. A close perusal of the terms between the parties would clearly show that the first part of Article 22 is on the law governing the contract and in the second part the parties intended to lay down the law applicable to the arbitration agreement, viz., the proper law of the agreement of arbitration. It is unnecessary that after already agreeing on the procedural law governing the arbitration in Article 17.1, the parties intended to state the same again in a separate clause within the same contract in Article 22. Therefore, the intention of the parties to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration is fairly clear from Article 22.12. Sumitomo (supra) is of no avail to the appellant. In Sumitomo (supra), there was no specific choice on the law of arbitration agreement and this court held that in absence of such choice, the law of arbitration agreement would be determined by the substantive law of the contract. That is not the case in this agreement.13. It is clear that the law applicable to arbitration agreement in the present case is English Law. Once it is found that the law governing the arbitration agreement is English Law, Part I of the Indian Arbitration Act stands impliedly excluded. This has been a long settled position and the latest judgment in Union of India v. Reliance Industries Limited and others (2015 (10) SCALE 149 )reaffirms the same. In the words of R.F. Nariman J., “20. The last paragraph of Bharat Aluminiums judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself-that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.” 14. We are hence unable to be persuaded by the persuasive argument advanced by Shri Sundaram, learned Senior Counsel appearing for the appellant that the arbitration agreement is to be governed by the Indian Law.15. Accordingly, we find no error in the view taken by the High Court that the applications filed by the appellant under Section 34 of the Indian Act are not maintainable against the two foreign awards dated 10.11.2002 and 12.11.2002 between the appellant and the respondent.
### Response:
0
### Explanation:
10. In the matter of interpretation, the court has to make different approaches depending upon the instrument falling for interpretation. Legislative drafting is made by experts and is subjected to scrutiny at different stages before it takes final shape of an Act, Rule or Regulation. There is another category of drafting by lawmen or document writers who are professionally qualified and experienced in the field like drafting deeds, treaties, settlements in court, etc. And then there is the third category of documents made by laymen who have no knowledge of law or expertise in the field. The legal quality or perfection of the document is comparatively low in the third category, high in second and higher in first. No doubt, in the process of interpretation in the first category, the courts do make an attempt to gather the purpose of the legislation, its context and text. In the second category also, the text as well as the purpose is certainly important, and in the third category of documents like wills, it is simply intention alone of the executor that is relevant. In the case before us, being a contract executed between the two parties, the court cannot adopt an approach for interpreting a statute. The terms of the contract will have to be understood in the way the parties wanted and intended them to be. In that context, particularly in agreements of arbitration, where party autonomy is the grundnorm, how the parties worked out the agreement, is one of the indicators to decipher the intention, apart from the plain or grammatical meaning of the expressions and the use of the expressions at the proper places in the agreement. Contextually, it may be noted that in the present case, the respondent had invoked the provisions of English law for the purpose of the initiation of the unsettled disputes. It has hence, while interpreting an agreement, to be kept in mind that the parties, intended to avoid impracticable and inconvenient processes and procedures in working out the agreement. Potter J. made a similar observation in CargillInternational S.A. v. Bangladesh Sugar and Food Industries Corporation (1998] 1 W.L.R. 461Lord Goff observed in another context in Palm Shipping v. Kuwait Petroleum [1988] 1 Lloyds Rep 500 at 502:is not a permissible method of construction to propound a general or generally accepted principal ... (and) ... then to seek to force the provisions of the ... (the contract) ... into the straightjacket of thatOn the other hand, modern principles of construction require the court to have regard to the commercial background, the context of the contract and the circumstances of the parties and to consider whether, against that background and in that context, to give the words a particular or restricted meaning would lead to an apparently unreasonable and unfair result.A close perusal of the terms between the parties would clearly show that the first part of Article 22 is on the law governing the contract and in the second part the parties intended to lay down the law applicable to the arbitration agreement, viz., the proper law of the agreement of arbitration. It is unnecessary that after already agreeing on the procedural law governing the arbitration in Article 17.1, the parties intended to state the same again in a separate clause within the same contract in Article 22. Therefore, the intention of the parties to apply English Law to the arbitration agreement also and not limit it to the conduct of the arbitration is fairly clear from Article 22.12. Sumitomo (supra) is of no avail to the appellant. In Sumitomo (supra), there was no specific choice on the law of arbitration agreement and this court held that in absence of such choice, the law of arbitration agreement would be determined by the substantive law of the contract. That is not the case in this agreement.13. It is clear that the law applicable to arbitration agreement in the present case is English Law. Once it is found that the law governing the arbitration agreement is English Law, Part I of the Indian Arbitration Act stands impliedly excluded. This has been a long settled position and the latest judgment in Union of India v. Reliance Industries Limited and others (2015 (10) SCALE 149 )reaffirms the same. In the words of R.F. Nariman J.The last paragraph of Bharat Aluminiums judgment has now to be read with two caveats, both emanating from paragraph 32 of Bhatia International itself-that where the Court comes to a determination that the juridical seat is outside India or where law other than Indian law governs the arbitration agreement, Part-I of the Arbitration Act, 1996 would be excluded by necessary implication. Therefore, even in the cases governed by the Bhatia principle, it is only those cases in which agreements stipulate that the seat of the arbitration is in India or on whose facts a judgment cannot be reached on the seat of the arbitration as being outside India that would continue to be governed by the Bhatia principle. Also, it is only those agreements which stipulate or can be read to stipulate that the law governing the arbitration agreement is Indian law which would continue to be governed by the Bhatia rule.We are hence unable to be persuaded by the persuasive argument advanced by Shri Sundaram, learned Senior Counsel appearing for the appellant that the arbitration agreement is to be governed by the Indian Law.15. Accordingly, we find no error in the view taken by the High Court that the applications filed by the appellant under Section 34 of the Indian Act are not maintainable against the two foreign awards dated 10.11.2002 and 12.11.2002 between the appellant and the respondent.
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Sardar Surjeet Singh Vs. Juguna Bai (Since Dead) & Others | shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property."17. Reliance has also been placed on a decision of this Court in S. Satnam Singh and Ors v. Surender Kaur and Anr. [(2009) 2 SCC 562] in which this Court laid down thus:"18. In certain situations, for the purpose of complete adjudication of the disputes between the parties an appellate Court may also take into consideration subsequent events after passing of the preliminary decree.In Ct. A. Ct. Nachiappa Chettiar & Ors. v. Ct. A. Ct. Subramaniam Chettiar [(1960) 2 SCR 209] , it was held :"20 It would thus be seen that the respondents share in the family properties was not in dispute nor was his share in the properties in Burma seriously challenged. The only plea raised in respect of the latter claim was that the court had no jurisdiction to deal with it. This state of the pleadings in a sense truly reflected the nature of the dispute between the parties. It is common ground that the family is a trading family and there could be no doubt that the assets of the family were partible between the members of the family. It was on these pleadings that the trial judge framed fifteen issues and set down the case for hearing."19. While dealing with the application under Section 21 of the Arbitration Act, 1940 where one of the questions was as to whether an immoveable property situated in Burma could be a subject matter of reference, in Phoolchand & Anr. v. Gopal Lal [(1967) 3 SCR 153] , it was held :"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility."Thus, subsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit. | 1[ds]14. After hearing the learned counsel for the parties, we are of the opinion that the question whether preliminary decree can bedecision is distinguishable and cannot be said to be applicable in view of the factual matrix of the instant case where the right has been asserted, which came into existence before the preliminary decree was passed and Nima Kaur was not a party to suit. It also appears that it was not the plea that was taken by any of the parties during the course of preliminary decree that she was having right, title or interest on the basis of settlement/gift deed datedsubsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit. | 1 | 5,431 | 231 | ### 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:
shares of the parties like any supervening development. Since the legislation is beneficial and placed on the statute book with the avowed object of benefiting women which is a vulnerable section of the society in all its stratas, it is necessary to give a liberal effect to it. For this reason also, we cannot equate the concept of partition that the legislature has in mind in the present case with a mere severance of the status of the joint family which can be effected by an expression of a mere desire by a family member to do so. The partition that the legislature has in mind in the present case is undoubtedly a partition completed in all respects and which has brought about an irreversible situation. A preliminary decree which merely declares shares which are themselves liable to change does not bring about any irreversible situation. Hence, we are of the view that unless a partition of the property is effected by metes and bounds, the daughters cannot be deprived of the benefits conferred by the Act. Any other view is likely to deprive a vast section of the fair sex of the benefits conferred by the amendment. Spurious family settlements, instruments of partitions not to speak of oral partitions will spring up and nullify the beneficial effect of the legislation depriving a vast section of women of its benefits.8. Hence, in our opinion, the High Court has rightly held that since the final decree had not been passed and the property had not been divided by metes and bounds, clause (iv) to Section 29-A was not attracted in the present case and the respondent-daughters were entitled to their share in the family property."17. Reliance has also been placed on a decision of this Court in S. Satnam Singh and Ors v. Surender Kaur and Anr. [(2009) 2 SCC 562] in which this Court laid down thus:"18. In certain situations, for the purpose of complete adjudication of the disputes between the parties an appellate Court may also take into consideration subsequent events after passing of the preliminary decree.In Ct. A. Ct. Nachiappa Chettiar & Ors. v. Ct. A. Ct. Subramaniam Chettiar [(1960) 2 SCR 209] , it was held :"20 It would thus be seen that the respondents share in the family properties was not in dispute nor was his share in the properties in Burma seriously challenged. The only plea raised in respect of the latter claim was that the court had no jurisdiction to deal with it. This state of the pleadings in a sense truly reflected the nature of the dispute between the parties. It is common ground that the family is a trading family and there could be no doubt that the assets of the family were partible between the members of the family. It was on these pleadings that the trial judge framed fifteen issues and set down the case for hearing."19. While dealing with the application under Section 21 of the Arbitration Act, 1940 where one of the questions was as to whether an immoveable property situated in Burma could be a subject matter of reference, in Phoolchand & Anr. v. Gopal Lal [(1967) 3 SCR 153] , it was held :"7. We are of opinion that there is nothing in the Code of Civil Procedure which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suits the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of parties to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed rights; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree which necessitates a change in shares, the court can and should do so; and if there is a dispute in that behalf, the order of the court deciding that dispute and making variation in shares specified in the preliminary decree already passed is a decree in itself which would be liable to appeal. We should however like to point out that what we are saying must be confined to partition suits, for we are not concerned in the present appeal with other kinds of suits in which also preliminary and final decrees are passed. There is no prohibition in the Code of Civil Procedure against passing a second preliminary decree in such circumstances and we do not see why we should rule out a second preliminary decree in such circumstances only on the ground that the Code of Civil Procedure does not contemplate such a possibility."Thus, subsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit.
### Response:
1
### Explanation:
14. After hearing the learned counsel for the parties, we are of the opinion that the question whether preliminary decree can bedecision is distinguishable and cannot be said to be applicable in view of the factual matrix of the instant case where the right has been asserted, which came into existence before the preliminary decree was passed and Nima Kaur was not a party to suit. It also appears that it was not the plea that was taken by any of the parties during the course of preliminary decree that she was having right, title or interest on the basis of settlement/gift deed datedsubsequent event can be taken consideration while working out the preliminary decree into the shape of final decree. It was also a case of subsequent event. As such, it is quite distinguishable. In the instant case, the preliminary decree has attained finality. The High Court has earlier rightly observed that preliminary decree would not be reopened due to impleadment which had been ordered.18. In our opinion, the High Court has erred in law while directing that further preliminary decrees can be passed. It was not a case of subsequent event or change of law. The only remedy available to Nima Kaur was to file a separate suit.
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Alek Mohammad Vs. State of West Bengal | Krishna Iyer, J. 1. We recorded a short order releasing the petitioner in this petition for habeas corpus, and we now proceed to give our reasons. 2. The petitioner was detained by the District Magistrate of Howrah by order dated August 8, 1972. The ground on which the District Magistrate was satisfied about the prejudicial activities of the petitioner was communicated immediately after the detention was effected on August 21, 1972. The Only particular instance communicated to the petitioner was that on January 14, 1972 he and his associates were engaged in committing theft of telephone cable wires belonging to the P and T Department at Balarampri and that he was caught red-handed. "In consequence of your said activity which attracts clause (iii) of Section 3 (1) (a) of the Maintenance of Internal Security Act, 1971, the tele-communication system was disturbed." This was the sole ground on which the petitioner could possibly make a representation. However, the District Magistrate, in his affidavit in opposition, stated "that the detenu-petitioner is one of the notorious stealers of railway materials and cable wire." Thereafter, the particular instance of January 14, 1972 is also set out. The District Magistrate winds up by stating that "the aforesaid activity of the petitioner disturbed telecommunication system and also caused substantial loss and damage to the Post and Telegraph Department andso he wasdetained under the said Act." (emphasis supplied.) 3.It is obvious that the District Magistrate has admitted to having been influenced by the course of activities - as distinguished from a single act or episode - and by the notoriety of the petitioner as a stealer of railway materials and cable wire. This important and injurious information was not communicated to the petitioner and, therefore, could not have been the subject of any effective representation contra by the latter. Therefore, the case is attracted by the ratioin the judgment in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 etc. of 1973 D/- 1-2-1974 = (reported in AIR 1974 SC 679 ). | 1[ds]3.It is obvious that the District Magistrate has admitted to having been influenced by the course of activitiesas distinguished from a single act or episodeand by the notoriety of the petitioner as a stealer of railway materials and cable wire. This important and injurious information was not communicated to the petitioner and, therefore, could not have been the subject of any effective representation contra by the latter. Therefore, the case is attracted by the ratioin the judgment in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 etc. of 1973 D/= (reported in AIR 1974 SC 679 ). | 1 | 386 | 114 | ### 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:
Krishna Iyer, J. 1. We recorded a short order releasing the petitioner in this petition for habeas corpus, and we now proceed to give our reasons. 2. The petitioner was detained by the District Magistrate of Howrah by order dated August 8, 1972. The ground on which the District Magistrate was satisfied about the prejudicial activities of the petitioner was communicated immediately after the detention was effected on August 21, 1972. The Only particular instance communicated to the petitioner was that on January 14, 1972 he and his associates were engaged in committing theft of telephone cable wires belonging to the P and T Department at Balarampri and that he was caught red-handed. "In consequence of your said activity which attracts clause (iii) of Section 3 (1) (a) of the Maintenance of Internal Security Act, 1971, the tele-communication system was disturbed." This was the sole ground on which the petitioner could possibly make a representation. However, the District Magistrate, in his affidavit in opposition, stated "that the detenu-petitioner is one of the notorious stealers of railway materials and cable wire." Thereafter, the particular instance of January 14, 1972 is also set out. The District Magistrate winds up by stating that "the aforesaid activity of the petitioner disturbed telecommunication system and also caused substantial loss and damage to the Post and Telegraph Department andso he wasdetained under the said Act." (emphasis supplied.) 3.It is obvious that the District Magistrate has admitted to having been influenced by the course of activities - as distinguished from a single act or episode - and by the notoriety of the petitioner as a stealer of railway materials and cable wire. This important and injurious information was not communicated to the petitioner and, therefore, could not have been the subject of any effective representation contra by the latter. Therefore, the case is attracted by the ratioin the judgment in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 etc. of 1973 D/- 1-2-1974 = (reported in AIR 1974 SC 679 ).
### Response:
1
### Explanation:
3.It is obvious that the District Magistrate has admitted to having been influenced by the course of activitiesas distinguished from a single act or episodeand by the notoriety of the petitioner as a stealer of railway materials and cable wire. This important and injurious information was not communicated to the petitioner and, therefore, could not have been the subject of any effective representation contra by the latter. Therefore, the case is attracted by the ratioin the judgment in Shaik Hanif v. State of West Bengal, W. P. Nos. 1679 etc. of 1973 D/= (reported in AIR 1974 SC 679 ).
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Railway Board, Government of India Vs. M/s. Observer Publications Private Limited | publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatory treatment.14. The question that has next to be resolved is whether Art. 14 could be invoked by the respondent in the present case. It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in Art. 12 of the Constitution. The learned Solicitor General has relied on Railway Board v. Niranjan Singh, (1969) 3 SCR 548 = (AIR 1969 SC 966 ).It was laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made.15. A certain amount of discussion took place before us with regard to the applicability of S. 28 of the Act which contains prohibition against undue preference being shown by the Railway Administration in any respect whatsoever. In the view that we have taken about the applicability of Article 14 we do not consider it necessary to decide whether the respondent could take advantage of the provisions of that section.16. Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if any appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied. | 0[ds]High Court had found as a fact that publications which were freely on sale on the bookstalls to whom licences had been given were such that they were hardly distinguishable from the "Indian Observer" on the ground of obscenity. It was not disputed before the High Court that the news weekly in question had been sold on railway platforms since 1963 nor was it suggested that the Railway Board had ever accorded individual sanction for the sale of every single book and publication at the book stalls of the Railway Administration.11. Now in the Indian Railway Code the policy or the principle laid down in categorical terms in sub-clause (viii) of Clause 742 is that the contractor should provide equal opportunity to all the popular newspapers for sale in their stalls on the same terms. This was subject to certain conditions, one of which was that the sale of obscene books and pictures and publications prohibited by the Government should be strictly banned. (vide sub-clause v). The letter written by the railway itself to which a reference has been made, does not impose the ban on the ground that the "Indian Observer" is an obscene publication which has been prohibited by the Government. In that letter there was first a recital of what had come to the Boards notice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was no finding or decision that it was a publication which was obscene. The conclusion of the Board simply was that the "Indian Observer" was not fit for sale at the Railway stations. The other condition laid down in sub-clause (v) that its sale had been prohibited by the Government was neither mentioned nor has it been shown that any such order had been made by the Government prohibiting the sale of the "Indian Observer" on the ground that it is obscene. The learned Solicitor General contends that the word Government in sub-clause (v) means the Railway Board because according to S. 2 of the Indian Railway Board Act. 1905, Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the power or functions of the Central Government under the Act. Our attention has not been drawn to any provision in the Act or the Rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatorywas laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discriminationdoes appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied. | 0 | 3,381 | 1,283 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatory treatment.14. The question that has next to be resolved is whether Art. 14 could be invoked by the respondent in the present case. It has not been and indeed cannot be disputed that the Railway Board will fall within the definition of "State" as given in Art. 12 of the Constitution. The learned Solicitor General has relied on Railway Board v. Niranjan Singh, (1969) 3 SCR 548 = (AIR 1969 SC 966 ).It was laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discrimination made.15. A certain amount of discussion took place before us with regard to the applicability of S. 28 of the Act which contains prohibition against undue preference being shown by the Railway Administration in any respect whatsoever. In the view that we have taken about the applicability of Article 14 we do not consider it necessary to decide whether the respondent could take advantage of the provisions of that section.16. Lastly, we may refer to a preliminary objection which was raised on behalf of the respondent to the certificate which was granted by the High Court. It has been urged that the certificate is defective because in the order dated July 7, 1968 granting it the Bench has virtually given a decision as if any appeal was being entertained against the judgment dated August 11, 1965 by which the writ petition was allowed. It does appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.
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which has been prohibited by the Government. In that letter there was first a recital of what had come to the Boards notice i.e. that the articles written in the said news weekly were in very low taste bordering on obscenity. There was no finding or decision that it was a publication which was obscene. The conclusion of the Board simply was that the "Indian Observer" was not fit for sale at the Railway stations. The other condition laid down in sub-clause (v) that its sale had been prohibited by the Government was neither mentioned nor has it been shown that any such order had been made by the Government prohibiting the sale of the "Indian Observer" on the ground that it is obscene. The learned Solicitor General contends that the word Government in sub-clause (v) means the Railway Board because according to S. 2 of the Indian Railway Board Act. 1905, Central Government may by notification in the official gazette invest the Railway Board either absolutely or subject to conditions with all or any of the power or functions of the Central Government under the Act. Our attention has not been drawn to any provision in the Act or the Rules framed thereunder by which the Central Government can prohibit the sale of any obscene book, picture or publication. It appears that the aforesaid clause has reference to a prohibition imposed by the Central Government under some enactment other than the Act.12. It is not claimed that the Railway Board could impose a ban under any other enactment. Nor has it been suggested that the Central Government had passed any order prohibiting the sale of the Indian Observer under any statutory provision.13. Even on the assumption that the Board could make such an order as is contemplated by sub-clause (v) of clause 742 it cannot take any advantage of that provision because in the letter dated March 26, 1965 it was nowhere stated that the publication of the news weekly was being banned on the ground of obscenity. It is thus apparent that the High Court was fully justified in taking the view that the "Indian Observer" had been singled out for being banned and this clearly amounted to a discriminatorywas laid down that there was no fundamental right under Art. 19 (1) for anyone to hold meetings in Government premises. The Northern Railway was the owner of the premises and was entitled to enjoy its property in the same manner as any private individual, subject to any such restrictions as the law or the usage placed on them. We are unable to appreciate how the ratio of that decision could be applied to the present case. The meetings of workers which had taken place there had been held inside workshops, stores and depots and within office compounds. Railway platforms may be the property of the railways, but it cannot be disputed that every bona fide traveller or every other member of the public who buys a platform ticket can have access to the railway platforms. It is true that under Rule 15 of the General Statutory Rules and Orders, a railway administration may exclude and, if necessary, remove from the station platform or any part of the railway premises any person who is not a bona fide passenger and who does not have any business connected with the railway or any person who having arrived at a station by train and having no business connected with the railway refuses to leave the railway premises when required to do so. But that is a right which is reserved for being exercised only in the circumstances mentioned in the rule. There is no analogy between a station platform and a government office. Even otherwise the crux of the matter is that the respondent is not seeking to use the station platform or any part of the railway premises by sending any of its own representatives to hawk or sell the news weekly there. All that the respondent says is that the railway administration has itself directed that the book-stall contractors who were its licensees should provide equal opportunity to all the popular newspapers for sale in their stalls. These very contractors are now being directed to discriminate between the respondent and owners or publishers of other popular newspapers on grounds which have no legal basis or justification. The administrative act or order of the Railway Board can, therefore, be challenged under Art. 14. The respondent is not asking for the enforcement of any such fundamental right as would come within the rule laid down in the previous decision of this Court. In other words what the present respondent is challenging is the order of the Railway Board which led to the stoppage of the sale of the news weekly on the Railway platforms etc. If that order is discriminatory and cannot be justified on any of the well known grounds, the respondent can challenge it in a petition under Art. 226 of the Constitution as violative of Art. 14. There is no parallel between the facts of this case and the decision relied upon by the learned Solicitor General. We concur with the view of the High Court that the impugned order of the Railway Board was discriminatory. No proper or valid grounds have been shown for sustaining the discriminationdoes appear that Deshpande J., who delivered the order of the Division Bench granting the certificate has made certain observations which seem to suggest that the previous decision was incorrect. Although such an order will not per se vitiate the certificate, both judicial propriety and decorum demand that a Bench while considering the question of granting a certificate for appeal to this Court ought not to be critical of or express any dissent from the judgment appealed against because it has no such jurisdiction and all that it has to decide is whether the requirement of the Articles of the Constitution on which a certificate can be granted, have been satisfied.
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Musheer Khan @ Badshah Khan and Anr Vs. State of Madhya Pradesh | payment by A-1, A-2, A-3 and A-6 for killing the deceased. The acquittal of A-1, A-2, A-3 and A-6 which is upheld by this Court casts a serious doubt on the entire prosecution and its case against A-4 and A-5 suffers a serious set back. 58. Considering the aforesaid facts and also going by the test of appreciation of circumstantial evidence as discussed above, this Court has to extend the benefit of doubt to A-4 and A-5 and cannot sustain the judgment and order of conviction of A-4 and A-5 under Sections 302/120-B of I.P.C read with Sections 25(1)(a)(b) and Section 27 of the Arms Act and consequently the death sentence awarded to them by the High Court is set aside. This Court is of the view that the so called circumstantial evidence against A-4 and A-5 does not constitute a complete chain which is consistent with the guilt of A-4 and A-5 and incompatible with their innocence. 59. Before parting, it may be noticed that in this case, it has been argued by the learned defence Counsel that in the matter of discovery of the weapon pursuant to the facts deposed by A-4 and A-5, the prosecution has not followed the safeguards which are statutorily engrafted in connection with a search under Section 100(4) and Section 100(5) of the Code of Criminal Procedure. 60. The learned Counsel argued that discovery pursuant to facts deposed under Section 27 of the Evidence Act can only become relevant if it is made following the safeguards under Section 100(4) and section 100(5) of the Code. 61. In State, Govt. of NCT of Delhi vs. Sunil and another, [(2001) 1 SCC 652] , almost a similar contention has been negatived by this Court in Para 19 of the report. The learned judges held: "..recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code." 62. In doing so, the learned judges relied on a decision of this Court in Transport The Transport Commissioner, A.P., Hyderabad and another vs. S. Sardar Ali, Bus Owner, Hyderabad and 41 others - [1983 4 SCC 245 ]. It may be true that the decision in Sardar Ali was rendered in the context of Motor Vehicles Act, but the propositions in Para 20, at page 662 of the report are, if I may say so, based on sound logic. 63. In Para 20, page 662 of the report it was held when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the investigating officer is necessarily attested by independent witnesses. But if in a given case, no witness is present or nobody agrees to attest the memo, it is difficult to lay down as a proposition that the discovery must be treated tainted or that the discovery evidence is unreliable. In such a situation, the Court has to consider the report of the investigating officer who made discovery on its own merits. 64. In para 21, this Court further elaborated this principle by saying when a police officer gives evidence in Court about discovery made by him on the strength of facts deposed by accused it is for the Court to believe the version, if it is otherwise shown to be reliable and it is for the accused to cross examine the investigating officer or rely on other materials to show that evidence of police officer is unreliable or unsafe. 65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code. 66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed. 67. Section 27 starts with the word `provided. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808 ]. 68. The Privy Counsel in Pulukori Kottaya vs. King Emperor, [1947 PC 67] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates. 69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused. 70. So the objection of the defence counsel to the discovery made by the prosecution in this case cannot be sustained. But the discovery by itself does not help the prosecution to sustain the conviction and sentence imposed on A-4 and A-5 by the High Court. | 1[ds]17. In view of the evidence discussed above it is absolutely natural for PW-4 to immediately talk with PW-3 to find out about the incident. But there is no evidence of that. PW-3 never whispered anything about the presence of PW-4 at the place of occurrence. On the other hand, evidence of PW-3 is that he with the help of PW-2, PW-17 and Gopal Jain (not examined) put the body of the deceased, half of which was hanging outside the Matiz Car, in the back of that car and some of those persons sat in the car and PW-3 drove the car to the hospital20. Taking into account the aforesaid factual background it is very doubtful whether PW-4 was at all present at the place of occurrence having regard to the evidence of PW-3. Therefore, identification by PW-4 of the scooter and the accused A-4 and A-5 in the T.I Parade becomes doubtful and no reliance can be placed on that22. So far as identification by PW-3 is concerned, the Court must take into consideration the extremely limited opportunities which PW-3 had of seeing the accused persons26. Applying these principles, in the facts of the case, the evidence of PW-3 that while driving the scooter A-4 was repeatedly looking back becomes highly doubtful31. In the instant case A-4 was apprehended on 05.12.2000 and was arrested on 06.12.2000 and the identification parade was held on 10.12.2000. It is admitted that A-4 was kept in open police custody for all these days from 6th December to 10th December, 2000 prior to his identification. About the identification by him PW-3 deposed that he recognized all the three persons in Court even though the fact remains that out of the three accused persons A-7 absconded and never faced trial. This is a clear discrepancy in the evidence of PW-3 about identification. It is an admitted position that A-4 is bald but in his evidence PW-3 admitted that during investigation the heads of the none of the persons were covered. Though in his evidence PW-3 has said that the persons were covered with a blanket upto the neck but PW-12, who held the identification parade, in his cross examination admitted that there is no reference of blanket in Ext. P-14 and Ext. P-16 which are the reports of T.I. parade of A-4 and A-5 respectively. This is a vital contradiction between the versions of witnesses identifying and the person conducting the T.I. Parade32. In so far as the identification of A-5 is concerned that has taken place at a very delayed stage, namely, his identification took place on 24.01.2001 and the incident is of 29.11.2000, even though A-5 was arrested on 22.12.2000. There is no explanation why his identification parade was held on 24.01.2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or High Court on such delayed T.I. parade for which there is no explanation by the prosecution35. The aforesaid decision of this Court has to be appreciated in the factual context of that case. From the facts in Pramod Mandal (supra) it appears that dacoity had taken place in the house for about 25 minutes in which PW-4 sustained several injuries from the accused in trying to resist the dacoity. Therefore, PW-4 had sufficient opportunity to notice the appearance and physical features of the accused and there was sufficient light. The Court found that the traumatic experience of PW-4 for a considerable period must have left the faces of the assailants firmly imprinted in his memory which could not be erased within a period of only 30 days. Under those circumstances, this Court held that the evidence in T.I. parade cannot be doubted36. But in the instant case the facts are totally different. Here PW-3 had nothing more than a fleeting chance of seeing A-4, A-5 and who hurriedly boarded the scooter while escaping from the place of occurrence. There is no evidence that PW-3 had any physical contact or confrontation with A-4 and A-5. Therefore, the ratio in Pramod Mandal (supra) cannot apply here43. Before this Court can appreciate the relevance of those prints, the Court has to look to the substantive evidence on record. It is nowhere alleged by the prosecution that there was any altercation between the deceased and the accused persons at the scene of occurrence. There is no whisper of any evidence that accused persons had any physical contact with the deceased or chased the deceased or dragged the deceased out of the car46. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence47. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances48. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence58. Considering the aforesaid facts and also going by the test of appreciation of circumstantial evidence as discussed above, this Court has to extend the benefit of doubt to A-4 and A-5 and cannot sustain the judgment and order of conviction of A-4 and A-5 under Sections 302/120-B of I.P.C read with Sections 25(1)(a)(b) and Section 27 of the Arms Act and consequently the death sentence awarded to them by the High Court is set aside. This Court is of the view that the so called circumstantial evidence against A-4 and A-5 does not constitute a complete chain which is consistent with the guilt of A-4 and A-5 and incompatible with their innocence59. Before parting, it may be noticed that in this case, it has been argued by the learned defence Counsel that in the matter of discovery of the weapon pursuant to the facts deposed by A-4 and A-5, the prosecution has not followed the safeguards which are statutorily engrafted in connection with a search under Section 100(4) and Section 100(5) of the Code of Criminal Procedure65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed67. Section 27 starts with the word `provided. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808 ]69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused | 1 | 6,484 | 1,577 | ### 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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payment by A-1, A-2, A-3 and A-6 for killing the deceased. The acquittal of A-1, A-2, A-3 and A-6 which is upheld by this Court casts a serious doubt on the entire prosecution and its case against A-4 and A-5 suffers a serious set back. 58. Considering the aforesaid facts and also going by the test of appreciation of circumstantial evidence as discussed above, this Court has to extend the benefit of doubt to A-4 and A-5 and cannot sustain the judgment and order of conviction of A-4 and A-5 under Sections 302/120-B of I.P.C read with Sections 25(1)(a)(b) and Section 27 of the Arms Act and consequently the death sentence awarded to them by the High Court is set aside. This Court is of the view that the so called circumstantial evidence against A-4 and A-5 does not constitute a complete chain which is consistent with the guilt of A-4 and A-5 and incompatible with their innocence. 59. Before parting, it may be noticed that in this case, it has been argued by the learned defence Counsel that in the matter of discovery of the weapon pursuant to the facts deposed by A-4 and A-5, the prosecution has not followed the safeguards which are statutorily engrafted in connection with a search under Section 100(4) and Section 100(5) of the Code of Criminal Procedure. 60. The learned Counsel argued that discovery pursuant to facts deposed under Section 27 of the Evidence Act can only become relevant if it is made following the safeguards under Section 100(4) and section 100(5) of the Code. 61. In State, Govt. of NCT of Delhi vs. Sunil and another, [(2001) 1 SCC 652] , almost a similar contention has been negatived by this Court in Para 19 of the report. The learned judges held: "..recovery of an object pursuant to the information supplied by an accused in custody is different from the searching endeavour envisaged in Chapter VII of the Code." 62. In doing so, the learned judges relied on a decision of this Court in Transport The Transport Commissioner, A.P., Hyderabad and another vs. S. Sardar Ali, Bus Owner, Hyderabad and 41 others - [1983 4 SCC 245 ]. It may be true that the decision in Sardar Ali was rendered in the context of Motor Vehicles Act, but the propositions in Para 20, at page 662 of the report are, if I may say so, based on sound logic. 63. In Para 20, page 662 of the report it was held when discovery is made pursuant to any facts deposed by the accused, the discovery memo prepared by the investigating officer is necessarily attested by independent witnesses. But if in a given case, no witness is present or nobody agrees to attest the memo, it is difficult to lay down as a proposition that the discovery must be treated tainted or that the discovery evidence is unreliable. In such a situation, the Court has to consider the report of the investigating officer who made discovery on its own merits. 64. In para 21, this Court further elaborated this principle by saying when a police officer gives evidence in Court about discovery made by him on the strength of facts deposed by accused it is for the Court to believe the version, if it is otherwise shown to be reliable and it is for the accused to cross examine the investigating officer or rely on other materials to show that evidence of police officer is unreliable or unsafe. 65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code. 66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed. 67. Section 27 starts with the word `provided. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808 ]. 68. The Privy Counsel in Pulukori Kottaya vs. King Emperor, [1947 PC 67] held that Section 27 of the Evidence Act is not artistically worded but it provides an exception to the prohibition imposed under the preceding sections. However, the extent of discovery admissible pursuant to the facts deposed by accused depends only to the nature of the facts discovered to which the information precisely relates. 69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused. 70. So the objection of the defence counsel to the discovery made by the prosecution in this case cannot be sustained. But the discovery by itself does not help the prosecution to sustain the conviction and sentence imposed on A-4 and A-5 by the High Court.
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his identification took place on 24.01.2001 and the incident is of 29.11.2000, even though A-5 was arrested on 22.12.2000. There is no explanation why his identification parade was held on 24.01.2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the courts below or High Court on such delayed T.I. parade for which there is no explanation by the prosecution35. The aforesaid decision of this Court has to be appreciated in the factual context of that case. From the facts in Pramod Mandal (supra) it appears that dacoity had taken place in the house for about 25 minutes in which PW-4 sustained several injuries from the accused in trying to resist the dacoity. Therefore, PW-4 had sufficient opportunity to notice the appearance and physical features of the accused and there was sufficient light. The Court found that the traumatic experience of PW-4 for a considerable period must have left the faces of the assailants firmly imprinted in his memory which could not be erased within a period of only 30 days. Under those circumstances, this Court held that the evidence in T.I. parade cannot be doubted36. But in the instant case the facts are totally different. Here PW-3 had nothing more than a fleeting chance of seeing A-4, A-5 and who hurriedly boarded the scooter while escaping from the place of occurrence. There is no evidence that PW-3 had any physical contact or confrontation with A-4 and A-5. Therefore, the ratio in Pramod Mandal (supra) cannot apply here43. Before this Court can appreciate the relevance of those prints, the Court has to look to the substantive evidence on record. It is nowhere alleged by the prosecution that there was any altercation between the deceased and the accused persons at the scene of occurrence. There is no whisper of any evidence that accused persons had any physical contact with the deceased or chased the deceased or dragged the deceased out of the car46. In a case of circumstantial evidence, one must look for complete chain of circumstances and not on snapped and scattered links which do not make a complete sequence47. This Court finds that this case is entirely based on circumstantial evidence. While appreciating circumstantial evidence, the Court must adopt a cautious approach as circumstantial evidence is "inferential evidence" and proof in such a case is derivable by inference from circumstances48. Chief Justice Fletcher Moulton once observed that "proof does not mean rigid mathematical" formula since "that is impossible". However, proof must mean such evidence as would induce a reasonable man to come to a definite conclusion. Circumstantial evidence, on the other hand, has been compared by Lord Coleridge "like a gossamer thread, light and as unsubstantial as the air itself and may vanish with the merest of touches". The learned Judge also observed that such evidence may be strong in parts but it may also leave great gaps and rents through which the accused may escape. Therefore, certain rules have been judicially evolved for appreciation of circumstantial evidence58. Considering the aforesaid facts and also going by the test of appreciation of circumstantial evidence as discussed above, this Court has to extend the benefit of doubt to A-4 and A-5 and cannot sustain the judgment and order of conviction of A-4 and A-5 under Sections 302/120-B of I.P.C read with Sections 25(1)(a)(b) and Section 27 of the Arms Act and consequently the death sentence awarded to them by the High Court is set aside. This Court is of the view that the so called circumstantial evidence against A-4 and A-5 does not constitute a complete chain which is consistent with the guilt of A-4 and A-5 and incompatible with their innocence59. Before parting, it may be noticed that in this case, it has been argued by the learned defence Counsel that in the matter of discovery of the weapon pursuant to the facts deposed by A-4 and A-5, the prosecution has not followed the safeguards which are statutorily engrafted in connection with a search under Section 100(4) and Section 100(5) of the Code of Criminal Procedure65. Therefore, reliability of the materials discovered pursuant to the facts deposed by the accused in police custody depends on the facts of each case. If the discovery is otherwise reliable, its evidentiary value is not diluted just by reason of non-compliance with the provision of Section 100(4) or Section 100(5) of the Code66. The reason is that Section 100 falls under Chapter VII of the Code which deals with processes initiated to compel the production of things on a search. Therefore the entire gamut of proceedings under Chapter VII of the Code is based on compulsion whereas the very basis of facts deposed by an accused in custody is voluntary and pursuant thereto discovery takes place. Thus, they operate in totally different situations. Therefore, the safeguards in search proceedings based on compulsion cannot be read into discovery on the basis of facts voluntarily deposed67. Section 27 starts with the word `provided. Therefore, it is a proviso by way of an exception to Sections 25 and 26 of the Evidence Act. If the facts deposed under Section 27 are not voluntary, then it will not be admissible, and will be hit by Article 20(3) of the Constitution of India. [See State of Bombay vs. Kathi Kalu Oghad, [AIR 1961 SC 1808 ]69. The limited nature of the admissibility of the facts discovered pursuant to the statement of the accused under Section 27 can be illustrated by the following example: Suppose a person accused of murder deposes to the police officer the fact as a result of which the weapon with which the crime is committed is discovered, but as a result of such discovery no inference can be drawn against the accused, if there is no evidence connecting the knife with the crime alleged to have been committed by the accused
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Dr. K. A. Dhairyawan And Others Vs. J. R. Thakur And Others | the subsistence of the lease the ownership of the building remained with the lessees. The lessees contracted to hand over the building without compensation at the end of the lease and in consideration for this the lessees were being demised the land at a small rental of Rs. 50 per month. We have examined the various clauses of the lease and are satisfied that not one of them, if properly construed, indicates that there was any contract between the parties to the effect that the building to be erected on the land would be in the ownership of the lessors and that the same would be deemed to have been demised to the lessees along with the land.10. It was next urged that even if there had been no demise of the building to be erected on the land possession of if could not be given to the appellants until the lease had been determined, which in law, could not be determined so long as the respondents could not be evicted from the demised land of which they were tenants within the meaning of the Act.This contention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by the Act.11. It was then submitted that the appellants could not get the declaration to the effect that they were entitled to the rents and profits from the building which had been let out to several persons by the respondents because they could not realise the same without entering upon the land on which the building had been constructed. The appellants could not enter upon the land for the purpose of collecting the rents without the consent of the respondents as the latter were the tenants of the land. They could only enter upon the land as provided for by the Act. The declaration which the appellants seek, however, does not ask for a declaration that they are entitled to enter upon the land. All that it seeks is that they are entitled to the rents and profits of the building which had been let out to several persons by the respondents. The appellants merely seek a declaration of their right to collect the rents and profits from the building. As to how they collect the same was their concern. There seems, therefore, to be no valid objection in law to granting the relief sought by the appellants.12. The original lessees were Moreshwar Kashinath and Radhabai, wife of Ramakrishna Bhai Thakore. Apparently, these persons were dead and the suit was filed against defendants 1 to 3 as heirs and legal representatives of Radhabai and defendants 4 and 5 as heirs and legal representatives of Moreshwar Kashinath Thakore. After the suit was filed it was discovered that defendant No. 4 could not be served with a copy of the plaint as she had died before the institution of the suit. Her name was accordingly struck off as a defendant in the suit.It was conceded on behalf of the defendants at the trial that the suit filed against the defendants on a cause of action could not be dismissed merely because of the non-joinder of the legal representatives of defendant No 4 who was already dead at the institution of the suit.In appeal, the learned Judges were of the opinion that it was not necessary to decide this question because, in their opinion, the suit was bound to fail on other grounds. Whatever other consequences may arise on account of the failure of the appellants to implead the heirs and legal representatives of defendant No. 4, it was conceded on behalf of the respondents at the trial that the suit could not be dismissed merely because of this. It would have been better if the heirs and legal representative of defendant No. 4 had been brought on to the record as defendants. It seems to us, however, that the suit cannot be dismissed merely on this ground because the nature of the declaration which the appellants sought could be granted even in the absence of the heirs and representatives of defendant No. 4 being on the record. Though the plaintiffs impleaded 5 persons as defendants in the suit, the plaintiffs claimed a decree against the first defendant only in respect of the rents received by him from the tenants in the building in question. There is no claim against the other defendants for accounts in respect of the usufruct of the property. The correspondence disclosed in the suit, which passed between the plaintiffs and the first defendant, showed that it was only he who was in effective control of the building. The suit was contested only by the first three defendants who appear to be brothers and who claim to have continued in possession of the building after the crucial date i.e., May 22, 1948. It is they who claimed protection under the Act. Defendants 4 and 5, who were purported to be sued as representatives of one of the joint lessees, do not appear to have taken any interest in the building. After the suit, defendant No. 5 has remained ex parte throughout. After the decree of the trial court, it is only the first three defendants who preferred an appeal to the High Court. From all these considerations, it appears that the 4th defendant or her heirs or legal representatives were not necessary parties to the suit. The Court could, therefore, proceed with the suit in their absence. | 1[ds]7. Normally, under S. 108 of the Transfer of Property Act, before the expiry of the lease, a lessee can remove all structures and buildings erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership therefore, of the building in this case was not with the lessors but was with the lessees. Under S. 108 of the Transfer of Property Act there was nothing to prevent the lessees contracting to hand over any building or structure erected on the land by them to the lessors without receiving any compensation. In other words, although under S. 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessors without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however did not transfer the ownership in the building to the lessors while the leaseownership in the building to be constructed did not pass on to the lessors under the lease. During the subsistence of the lease the ownership of the building remained with the lessees. The lessees contracted to hand over the building without compensation at the end of the lease and in consideration for this the lessees were being demised the land at a small rental of Rs. 50 per month. We have examined the various clauses of the lease and are satisfied that not one of them, if properly construed, indicates that there was any contract between the parties to the effect that the building to be erected on the land would be in the ownership of the lessors and that the same would be deemed to have been demised to the lessees along with thecontention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by theseems to us, however, that the suit cannot be dismissed merely on this ground because the nature of the declaration which the appellants sought could be granted even in the absence of the heirs and representatives of defendant No. 4 being on the record. Though the plaintiffs impleaded 5 persons as defendants in the suit, the plaintiffs claimed a decree against the first defendant only in respect of the rents received by him from the tenants in the building in question. There is no claim against the other defendants for accounts in respect of the usufruct of the property. The correspondence disclosed in the suit, which passed between the plaintiffs and the first defendant, showed that it was only he who was in effective control of the building. The suit was contested only by the first three defendants who appear to be brothers and who claim to have continued in possession of the building after the crucial date i.e., May 22, 1948. It is they who claimed protection under the Act. Defendants 4 and 5, who were purported to be sued as representatives of one of the joint lessees, do not appear to have taken any interest in the building. After the suit, defendant No. 5 has remained ex parte throughout. After the decree of the trial court, it is only the first three defendants who preferred an appeal to the High Court. From all these considerations, it appears that the 4th defendant or her heirs or legal representatives were not necessary parties to the suit. The Court could, therefore, proceed with the suit in their absence. | 1 | 4,267 | 755 | ### 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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the subsistence of the lease the ownership of the building remained with the lessees. The lessees contracted to hand over the building without compensation at the end of the lease and in consideration for this the lessees were being demised the land at a small rental of Rs. 50 per month. We have examined the various clauses of the lease and are satisfied that not one of them, if properly construed, indicates that there was any contract between the parties to the effect that the building to be erected on the land would be in the ownership of the lessors and that the same would be deemed to have been demised to the lessees along with the land.10. It was next urged that even if there had been no demise of the building to be erected on the land possession of if could not be given to the appellants until the lease had been determined, which in law, could not be determined so long as the respondents could not be evicted from the demised land of which they were tenants within the meaning of the Act.This contention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by the Act.11. It was then submitted that the appellants could not get the declaration to the effect that they were entitled to the rents and profits from the building which had been let out to several persons by the respondents because they could not realise the same without entering upon the land on which the building had been constructed. The appellants could not enter upon the land for the purpose of collecting the rents without the consent of the respondents as the latter were the tenants of the land. They could only enter upon the land as provided for by the Act. The declaration which the appellants seek, however, does not ask for a declaration that they are entitled to enter upon the land. All that it seeks is that they are entitled to the rents and profits of the building which had been let out to several persons by the respondents. The appellants merely seek a declaration of their right to collect the rents and profits from the building. As to how they collect the same was their concern. There seems, therefore, to be no valid objection in law to granting the relief sought by the appellants.12. The original lessees were Moreshwar Kashinath and Radhabai, wife of Ramakrishna Bhai Thakore. Apparently, these persons were dead and the suit was filed against defendants 1 to 3 as heirs and legal representatives of Radhabai and defendants 4 and 5 as heirs and legal representatives of Moreshwar Kashinath Thakore. After the suit was filed it was discovered that defendant No. 4 could not be served with a copy of the plaint as she had died before the institution of the suit. Her name was accordingly struck off as a defendant in the suit.It was conceded on behalf of the defendants at the trial that the suit filed against the defendants on a cause of action could not be dismissed merely because of the non-joinder of the legal representatives of defendant No 4 who was already dead at the institution of the suit.In appeal, the learned Judges were of the opinion that it was not necessary to decide this question because, in their opinion, the suit was bound to fail on other grounds. Whatever other consequences may arise on account of the failure of the appellants to implead the heirs and legal representatives of defendant No. 4, it was conceded on behalf of the respondents at the trial that the suit could not be dismissed merely because of this. It would have been better if the heirs and legal representative of defendant No. 4 had been brought on to the record as defendants. It seems to us, however, that the suit cannot be dismissed merely on this ground because the nature of the declaration which the appellants sought could be granted even in the absence of the heirs and representatives of defendant No. 4 being on the record. Though the plaintiffs impleaded 5 persons as defendants in the suit, the plaintiffs claimed a decree against the first defendant only in respect of the rents received by him from the tenants in the building in question. There is no claim against the other defendants for accounts in respect of the usufruct of the property. The correspondence disclosed in the suit, which passed between the plaintiffs and the first defendant, showed that it was only he who was in effective control of the building. The suit was contested only by the first three defendants who appear to be brothers and who claim to have continued in possession of the building after the crucial date i.e., May 22, 1948. It is they who claimed protection under the Act. Defendants 4 and 5, who were purported to be sued as representatives of one of the joint lessees, do not appear to have taken any interest in the building. After the suit, defendant No. 5 has remained ex parte throughout. After the decree of the trial court, it is only the first three defendants who preferred an appeal to the High Court. From all these considerations, it appears that the 4th defendant or her heirs or legal representatives were not necessary parties to the suit. The Court could, therefore, proceed with the suit in their absence.
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7. Normally, under S. 108 of the Transfer of Property Act, before the expiry of the lease, a lessee can remove all structures and buildings erected by him on the demised land. All that was necessary for him to do was to give back the land to the lessor, on the termination of the lease, in the same condition as he found it. The ownership therefore, of the building in this case was not with the lessors but was with the lessees. Under S. 108 of the Transfer of Property Act there was nothing to prevent the lessees contracting to hand over any building or structure erected on the land by them to the lessors without receiving any compensation. In other words, although under S. 108 the lessees had the right to remove the building, by the contract they had agreed to hand over the same to the lessors without the right to receive compensation at the end of the lease, the matter being entirely one of contract between the parties. Such a contract, however did not transfer the ownership in the building to the lessors while the leaseownership in the building to be constructed did not pass on to the lessors under the lease. During the subsistence of the lease the ownership of the building remained with the lessees. The lessees contracted to hand over the building without compensation at the end of the lease and in consideration for this the lessees were being demised the land at a small rental of Rs. 50 per month. We have examined the various clauses of the lease and are satisfied that not one of them, if properly construed, indicates that there was any contract between the parties to the effect that the building to be erected on the land would be in the ownership of the lessors and that the same would be deemed to have been demised to the lessees along with thecontention is without force as the provisions of the Act do not provide for the continuation of a lease beyond the specified period stated therein. All that the Act does is to give to the person who continues to remain in possession of the land, although the period of the lease had come to an end, the status of a statutory tenant. That is to say, although the lease had come to an end but the lessee continued to remain in possession without the consent of the lessor, he would nonetheless be a tenant of the land and could not be evicted save as provided by theseems to us, however, that the suit cannot be dismissed merely on this ground because the nature of the declaration which the appellants sought could be granted even in the absence of the heirs and representatives of defendant No. 4 being on the record. Though the plaintiffs impleaded 5 persons as defendants in the suit, the plaintiffs claimed a decree against the first defendant only in respect of the rents received by him from the tenants in the building in question. There is no claim against the other defendants for accounts in respect of the usufruct of the property. The correspondence disclosed in the suit, which passed between the plaintiffs and the first defendant, showed that it was only he who was in effective control of the building. The suit was contested only by the first three defendants who appear to be brothers and who claim to have continued in possession of the building after the crucial date i.e., May 22, 1948. It is they who claimed protection under the Act. Defendants 4 and 5, who were purported to be sued as representatives of one of the joint lessees, do not appear to have taken any interest in the building. After the suit, defendant No. 5 has remained ex parte throughout. After the decree of the trial court, it is only the first three defendants who preferred an appeal to the High Court. From all these considerations, it appears that the 4th defendant or her heirs or legal representatives were not necessary parties to the suit. The Court could, therefore, proceed with the suit in their absence.
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Union Of India Vs. Glaxo India Ltd. | the stay not been granted have been taken into consideration. The prices to which your company was entitled to are shown in column 5 of the statement and these prices have been worked out by the Expert Body, namely, Bureau (sic.) of Industrial Costs and prices based on the price of the bulk drug as upheld by the High Court and other parameters like conversion cost, packing charges, packing materials excipients (sic.) etc. As prevalent in May, 1981, the norms of conversion cost and packing charges for formulations have also been upheld by the Honble Supreme Court.3. Liability in respect of two packs of formulations indicated at S.No.17 and 18 (sic.) would be communicated to you after the details of the price prevailing on 12th May, 1981 and the basis thereof are communicated to the Government.4. The liability in respect of 6 packs of formulations would be finalized after the details of packs produced/sold during 12th May, 1981 to 30th June, 1981 are made available. It is brought to your notice once again that as already advised in this Ministrys letter of even number dated the 20th September, 1990 and as directed by the Honble High Court vide its orders dated the 9th August, 1990 your company is still to make available the details in respect of bulk drug Betamathasone and its formulations after 25th August, 1987. Please expedite these details also so that your liability can be finalized for this period as well.Yours faithfully,Sd./-(J.L. Sharma)UNDER SECRETARY TOTHE GOVERNMENT OF INDIA"44). Now let us see how the High Court has decided this issue. The Court after noticing elaborately the intent, object and the possible construction that could be placed on paras 3 to 9 and para 17 has observed that:"Neither paras 3 to 9 nor para 17 of DPCO 1979 suggest that the amount to be deposited in DPEA had anything to do with the prices of the formulations which were being fixed in terms of paras 10 and 11 of the said order. Para 7(2) of the order, which speaks of utilization of bulk drugs in the formulations, makes it abundantly clear that the amount to be deposited into DPEA in this regard related only to the common selling price of bulk drug which was lower than the price allowed to him in the price of his formulations. As a natural consequence, therefore, the demand for the amount to be deposited in DPEA account could be based and calculated only on the basis of the prices of the bulk drugs consumed in the formulations and not on the basis of notional prices of formulations. The prices of the formulations, therefore, were not at all relevant for the purpose. Thus the impugned demands, which were based on the formulations prices suffer from the vice of considering the formulations prices and not the quantity and the price of the bulk drugs consumed therein." (Emphasis supplied)45). In our view, the fallacy in the impugned judgment appears to be in not properly analyzing the clear meaning of the expressions used in para 7(2)(b) of DPCO 1979.46) A plain reading of Para 7(2)(a) of the DPCO 1979 shows what can be directed by the Central Government to be deposited into DPEA by the manufacturer of bulk drugs and any formulations using those drugs or procured from outside, as in the present case. Firstly, Para 7(2)(a) applies to a manufacturer of formulations. The manufacturer must utilize in the formulation(s) any bulk drug. The bulk drug could be either from his own production or procured from any other sources. If the price of such bulk drugs is notified as lower than the price allowed to him in the price of his formulations, the Central Government may require the manufacturer of formulation the excess amount determined to be deposited into DPEA. Under Para 7(2)(b), the Central Government may direct the manufacturer of formulations to sell the formulations at such prices as may be fixed by the Government.47) The Central Government, while issuing the letters/demand dated 18.06.1990 and 16.11.1990, has specifically bifurcated the differential amount that requires to be paid by the respondent-company on the bulk drugs and their formulations. In the letter, it is made clear that in view of the notification dated 20.11.1986, the respondent-company has to deposit into DPEA the difference between the retention price and pooled price for the sale of bulk drugs. Similarly, since the respondent-company manufactures drug formulations by captive consumption of the bulk drugs, the Central Government initially could not fix the retention price of the formulations in view of the interim orders passed by the High Court while admitting the writ petition filed by the respondent-company. After disposal of the writ petitions filed and in view of the specific liberty that was granted by the High Court in the petitions filed by the respondent-company, the Central Government directed the company to pay not only the difference amount payable for the price of bulk drugs but also those drugs which are utilized in their formulations over and above the prices fixed by the Central Government. In our view, since the para 7(2)(a) of DPCO 1979 does not admit a construction which the respondent-company suggests, it is difficult to hold that under para 7(2)(a) of DPCO 1979, the Central Government could issue demand on the basis of bulk drugs only and not on the basis of difference between the prices of bulk drugs and the prices of the formulations in which the company had used those bulk drugs.48). Before we conclude, it is important to mention that the respondent company (and similar companies) not only manufacture bulk drugs but also use them for their drug formulations for its supply in retail vending and thereby, the ordinary consumer is burdened with a higher price than what they could have got at a lesser price. Since that is taken care of in para 17 of DPCO 1979, it may not be necessary to lean towards the submissions made by learned counsel for the respondent-company. | 1[ds]32). In our view, a reading of the observations made by the Court, would indicate that it had reserved liberty to the Central Government either to affirm or review the prices of the bulk drugs fixed by order dated 20.11.1986 and to make consequent changes in the prices for drug formulations. The Central Govt., taking clue from the directions issued by the Court, which order has become final, has passed the impugned Notification dated 02.01.1989, by refixing the prices of drug formulations by applying the provisions contained in DPCO 1989. In view of the above, it is difficult for us to find fault with the exercise done by Central Government while notifying the impugned notification. In our considered view, the notification so issued is in accordance with the observations made by this Court in Cyanamide case (supra) wherein it is stated :-"...............since the maximum price of a bulk drug is required by paragraph 3 to be notified any fresh decision taken in the proceeding for review by way of modification of the maximum price has to be made by a fresh notification fixing the new maximum price of the bulk drug. In other words, the review if it is fruitful it must result in fresh subordinate legislative activity."These observations of this Court in Cyanamide case, in our view, supports the stand of the Revenue, that once a review petition filed by the manufacturer of a bulk drug is considered and a fresh notification is issued, the same would be prospective and it does not relate back to the notification fixing the prices of bulk drugs issued earlier.33). It is no doubt true that the Murthy Committee was constituted pursuant to the direction issued by the High Court to look into the data that may be furnished by the Respondent-Company and give its report for the purpose of fixing the prices of the bulk drugs manufactured by the Respondent-Company. It is also not in dispute that the prices fixed by the Murthy Committee was much higher than those notified by the Central Government, while issuing the notification dated 20.11.1986. In our view, that itself will not make any difference for the reason, the Central Government, after taking into consideration the report and the recommendations made by the Murthy Committee, has issued a notification which we have already said is only prospective and not retrospective as contended by learned counsel for the Respondent-Company. Hence, we are of the view that there was no implied rejection of the recommendations of the Murthy Committee.34) Therefore, firstly, it cannot be said that the Central Government while considering the review petition filed by the Respondent-Company had disregarded the direction issued by the Delhi High Court in its first judgment. Secondly, the contention of the respondent-company that the price fixation order of 02.01.1989 was the result of decision taken by the Central Govt. on the review petition filed by the respondent-company and therefore, the demands raised as per the price fixation order dated 20.11.1986 had to be revised according to the price fixation order dated 02.01.1989, cannot be accepted. We also add, since the notification dated 02.01.1989 fixing prices of bulk drugs is prospective, the earlier notification would operate during the intervening period. To sum up, our findings in regard to the first and third issues are as under :-i) The demand to be raised on the respondent-company for the period 12.05.1981 to 25.08.1987 is to be based on the prices fixed under the notification dated 20.11.1986 and not on the drug prices fixed on 02.01.1989.ii) The supersession of a notification does not obliterate the liability incurred under the earlier notification.35) Now to answer the second issue, viz. whether the demand raised under para 7(2)(a) of DPCO 1979, should be computed on the basis of difference in bulk drug prices or on the basis of difference in formulation prices, it is necessary to extract para 7 of DPCO 1979 and the other relevant paras in DPCO 1979. Para 7 reads:"7. Power to fix retention price and pooled price for the sale of bulk drugs specified in First Schedule or Second Schedule indigenously manufactured as well as imported - (1) Where a bulk drug specified in the First Schedule or the Second Schedule is manufactured indigenously and is also imported, the Government may, having regard to the sale prices prevailing from time to time in respect of indigenously manufactured bulk drugs and those of imported bulk drugs, by order, fix, with such adjustments as the Government may consider necessary -(a) retention prices for individual manufacturers, importers, or distributors of such bulk drugs;(b) a pooled price for the sale of such bulk drugs (2) Where a manufacturer of formulations utilises in the formulations any bulk drug, either from his own production or procured by him from any other source, the price of such bulk drug being lower than the price allowed to him in the price of his formulations the Government may require such manufacturer -(a) to deposit into the Drug Prices Equalisation Account referred to in paragraph 17 the excess amount to be determined by the Government; or(b) to sell the formulations at such prices as may be fixed by the Government".36) Para 8 speaks of prices of bulk drugs produced through indigenous research and development, Para 9 authorises the Central Government to direct manufacturer of bulk drugs to sell bulk drugs to manufacturers of formulations, Para 10 provides for the calculation of retail prices of the formulations, Para 12 authorises the Central Government to fix retail prices of formulations specified in Category III of Third Schedule, Para 14 provides for general provisions regarding prices of formulations, Para 15 speaks of power of the Central Government to revise prices of formulations, Para 17 speaks of Drug Prices Equalisation Account (DPEA). The other paras may not be relevant to be noticed for the purposes of this case.37) Para 7 of the DPCO, 1979 is in two parts. Sub-para (1) of Para-7 authorises the Central Government to fix retention price and pooled price for the sale of Bulk drugs specified in First Schedule or Second Schedule indigenously manufactured and those of imported bulk drugs. Sub-Para (2) of Para 7 speaks of a situation where a manufacturer of formulations sells the formulations of any bulk drug, either manufactured by him or procured by him from other sources, being lower than the price allowed to him in the price of his formulations, the Government may require such manufacturer of formulations to deposit into DPEA the excess amount as determined by the Central Government. Sub Para 7(2)(b) mandates the manufacturer of the formulations to sell such formulations as fixed by the Central Government. Para 7 of DPCO 1979 provides two different situations, one based on the difference in the common selling prices of bulk drugs and the second the difference based on common selling prices of the formulations.Para 17 of DPCO 1979, as we have already stated, authorizes the Central Government to maintain DPEA comprised of the grants made by the Government, deposits to be made by the manufacturers, importers and distributors of the drugs.38) The Respondent-Company in the month of June, 1990 and November, 1990 received a demand on the allegations that the Respondent-Company had over charged for the bulk drugs as well as formulations being manufactured by it. These demands are based on the prices fixed by order dated 20.11.1986. The Respondent-Company had questioned this demand before the High Court primarily on the ground that the sale prices of the formulations cannot not be taken into consideration and only the cost of bulk drugs consumed in those formulations could be taken into consideration for making calculations. The prayer in the writ petition was to direct the Central Government to reassess and calculate the demand on the basis of the revised bulk drug prices fixed on 02.01.1989, instead of taking into consideration the prices of the formulations and to consider the excess amount on the basis of prices of bulk drugs used in the formulations. The stand of the Central Government in the affidavit filed before the High Court was that the prices of the bulk drugs had been fixed vide their order dated 12.05.1981 and 20.11.1986, but the prices of the formulation could not be fixed because of the stay granted by the Court and as such the Respondent-Company was bound to charge only prices as were liable to be fixed under the DPCO 1979. They had also stated that the Respondent-Company was entitled to charge such prices for its bulk drug as was fixed by the price fixation order dated 20.11.1986 or liable to be fixed for formulations under DPCO of 1979 and was bound to deposit the over charged amounts to DPEA.39) The learned senior counsel Shri. Andhyarujina submits that Para 7(2)(a) read with Para 17 of DPCO 1979 makes it clear that the Scheme of the DPCO 1979 was to encourage domestic production of bulk drugs through a system of retention and pooled pricing. It is also submitted that para 17(2) and (3) sets out the manner in which the DPEA was to be utilized and how a manufacturer of bulk drugs could make a claim in respect of bulk drugs manufactured by it from DPEA. Therefore, para 7(2)(a)was never intended to cover prices of formulation but only the differences in the price of bulk drugs used in formulations which the manufacturer can be asked to deposit into the DPEA under para 7(2)(a). However, it is argued by learned counsel for the Central Government that the expression "excess amount to be determined by the Government" in para 7(2)(a) of DPCO 1979 gives a wide discretion to the Government in the matter of determining the amount recoverable under the para and, therefore, the Government was justified in raising the demand taking into consideration the difference between the common selling prices and the price of the formulations.40) It is a cardinal principle of interpretation that a statute must be read as a whole. Lord Herschell in the case of Colguhoun v. Brooks, (1889) 14 AC 493, aptly pointed out:"It is beyond dispute, too, that we are entitled, and indeed bound, when construing the terms of any provision found in a statute, to consider any other parts of the Act which throw light on the intention of the legislature, and which may serve to show that the particular provision ought not to be construed as it would be alone and apart from the rest of the Act."41). This Court in the case of Phillips India Ltd. v. Labour Court, (1985) 3 SCC 103 has observed :"15. No canon of statutory construction is more firmly established that the statue must be read as a whole. This is a general rule of construction applicable to all statutes alike which is spoken of as construction ex visceribus actus......The only recognized exception to the well-laid principle is that it cannot be called in aid to alter the meaning of what is of itself clear and explicit. Lord Coke laid down that: "it is the most natural and genuine exposition of a statute, to construe one part of a statute by another part of the same statute, for that best expresseth meaning of the makers" (Quoted with approval in Punjab Beverages Pvt. Ltd. v. Suresh Chand, [(1978) 2 SCC 144]) "42). To our mind, the grievance of the respondent- company which was projected before the High Court and also before us is that the impugned demands were in violation of Para 7(2)(a) of DPCO 1979, mainly for the reason that they were not computed on the basis of difference in the prices of bulk drugs but on the difference between the prices of bulk drugs and the prices of formulations in which the company had used those bulk drugs. The appellants/Central Government while justifying the impugned demand had contended before the High Court and even before us, that the prices of bulk drugs were fixed vide orders dated 12.05.1981, which were revised by order dated 20.11.1986, but the formulations could not be fixed because of the interim order granted by the High Court and, ergo, the respondent-company is liable to deposit into DPEA the over charged amount in respect of their formulations also.43) To resolve the controversy on this issue, it is necessary to notice the impugned demands raised by the appellants/Central Government dated 16th November, 1990. The relevant portion is extracted by omitting what is not necessary for the purpose of considering the issue before us. They are as under:- "Subject: Recovery into the Drug prices Equalisation Account in respect of Betamethasone and its formulations.Dear Sirs,I am directed to refer to your letter dated the 17th September, 1990 on the above subject and to say that the liability of your company upto 25th August, 1987 has since been determined based on the available data. The details are as under:-(i) Bulk drugs sold to others(a) Attached statement at Annexure-I gives the details of your liability of Rs.23.62 lakhs in respect of the bulk drug.(ii) Formulations and bulk drug captively used.(b) The liability in respect of 16th packs of formulations has been determined at Rs.7121.03lakhs as per details annexed.(c) Liability in respect of 8 packs of formulations have been worked out at Rs.33.53 lakhs subject to your company making available the details of the packs produced and sold during 12th May, 1981 and 30th June, 1981. The liability in respect of these 8 packs would be finalized after these details are received.2. While determining the liability the prices charged by your company based on the stay granted by the Honble Delhi High Court and the prices to which your company would have been entitled had the stay not been granted have been taken into consideration. The prices to which your company was entitled to are shown in column 5 of the statement and these prices have been worked out by the Expert Body, namely, Bureau (sic.) of Industrial Costs and prices based on the price of the bulk drug as upheld by the High Court and other parameters like conversion cost, packing charges, packing materials excipients (sic.) etc. As prevalent in May, 1981, the norms of conversion cost and packing charges for formulations have also been upheld by the Honble Supreme Court.3. Liability in respect of two packs of formulations indicated at S.No.17 and 18 (sic.) would be communicated to you after the details of the price prevailing on 12th May, 1981 and the basis thereof are communicated to the Government.4. The liability in respect of 6 packs of formulations would be finalized after the details of packs produced/sold during 12th May, 1981 to 30th June, 1981 are made available. It is brought to your notice once again that as already advised in this Ministrys letter of even number dated the 20th September, 1990 and as directed by the Honble High Court vide its orders dated the 9th August, 1990 your company is still to make available the details in respect of bulk drug Betamathasone and its formulations after 25th August, 1987. Please expedite these details also so that your liability can be finalized for this period as well.Yours faithfully,Sd./-(J.L. Sharma)UNDER SECRETARY TOTHE GOVERNMENT OF INDIA"44). Now let us see how the High Court has decided this issue. The Court after noticing elaborately the intent, object and the possible construction that could be placed on paras 3 to 9 and para 17 has observed that:"Neither paras 3 to 9 nor para 17 of DPCO 1979 suggest that the amount to be deposited in DPEA had anything to do with the prices of the formulations which were being fixed in terms of paras 10 and 11 of the said order. Para 7(2) of the order, which speaks of utilization of bulk drugs in the formulations, makes it abundantly clear that the amount to be deposited into DPEA in this regard related only to the common selling price of bulk drug which was lower than the price allowed to him in the price of his formulations. As a natural consequence, therefore, the demand for the amount to be deposited in DPEA account could be based and calculated only on the basis of the prices of the bulk drugs consumed in the formulations and not on the basis of notional prices of formulations. The prices of the formulations, therefore, were not at all relevant for the purpose. Thus the impugned demands, which were based on the formulations prices suffer from the vice of considering the formulations prices and not the quantity and the price of the bulk drugs consumed therein." (Emphasis supplied)45). In our view, the fallacy in the impugned judgment appears to be in not properly analyzing the clear meaning of the expressions used in para 7(2)(b) of DPCO 1979.46) A plain reading of Para 7(2)(a) of the DPCO 1979 shows what can be directed by the Central Government to be deposited into DPEA by the manufacturer of bulk drugs and any formulations using those drugs or procured from outside, as in the present case. Firstly, Para 7(2)(a) applies to a manufacturer of formulations. The manufacturer must utilize in the formulation(s) any bulk drug. The bulk drug could be either from his own production or procured from any other sources. If the price of such bulk drugs is notified as lower than the price allowed to him in the price of his formulations, the Central Government may require the manufacturer of formulation the excess amount determined to be deposited into DPEA. Under Para 7(2)(b), the Central Government may direct the manufacturer of formulations to sell the formulations at such prices as may be fixed by the Government.47) The Central Government, while issuing the letters/demand dated 18.06.1990 and 16.11.1990, has specifically bifurcated the differential amount that requires to be paid by the respondent-company on the bulk drugs and their formulations. In the letter, it is made clear that in view of the notification dated 20.11.1986, the respondent-company has to deposit into DPEA the difference between the retention price and pooled price for the sale of bulk drugs. Similarly, since the respondent-company manufactures drug formulations by captive consumption of the bulk drugs, the Central Government initially could not fix the retention price of the formulations in view of the interim orders passed by the High Court while admitting the writ petition filed by the respondent-company. After disposal of the writ petitions filed and in view of the specific liberty that was granted by the High Court in the petitions filed by the respondent-company, the Central Government directed the company to pay not only the difference amount payable for the price of bulk drugs but also those drugs which are utilized in their formulations over and above the prices fixed by the Central Government. In our view, since the para 7(2)(a) of DPCO 1979 does not admit a construction which the respondent-company suggests, it is difficult to hold that under para 7(2)(a) of DPCO 1979, the Central Government could issue demand on the basis of bulk drugs only and not on the basis of difference between the prices of bulk drugs and the prices of the formulations in which the company had used those bulk drugs.48). Before we conclude, it is important to mention that the respondent company (and similar companies) not only manufacture bulk drugs but also use them for their drug formulations for its supply in retail vending and thereby, the ordinary consumer is burdened with a higher price than what they could have got at a lesser price. Since that is taken care of in para 17 of DPCO 1979, it may not be necessary to lean towards the submissions made by learned counsel for the respondent-company. | 1 | 11,805 | 3,706 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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the stay not been granted have been taken into consideration. The prices to which your company was entitled to are shown in column 5 of the statement and these prices have been worked out by the Expert Body, namely, Bureau (sic.) of Industrial Costs and prices based on the price of the bulk drug as upheld by the High Court and other parameters like conversion cost, packing charges, packing materials excipients (sic.) etc. As prevalent in May, 1981, the norms of conversion cost and packing charges for formulations have also been upheld by the Honble Supreme Court.3. Liability in respect of two packs of formulations indicated at S.No.17 and 18 (sic.) would be communicated to you after the details of the price prevailing on 12th May, 1981 and the basis thereof are communicated to the Government.4. The liability in respect of 6 packs of formulations would be finalized after the details of packs produced/sold during 12th May, 1981 to 30th June, 1981 are made available. It is brought to your notice once again that as already advised in this Ministrys letter of even number dated the 20th September, 1990 and as directed by the Honble High Court vide its orders dated the 9th August, 1990 your company is still to make available the details in respect of bulk drug Betamathasone and its formulations after 25th August, 1987. Please expedite these details also so that your liability can be finalized for this period as well.Yours faithfully,Sd./-(J.L. Sharma)UNDER SECRETARY TOTHE GOVERNMENT OF INDIA"44). Now let us see how the High Court has decided this issue. The Court after noticing elaborately the intent, object and the possible construction that could be placed on paras 3 to 9 and para 17 has observed that:"Neither paras 3 to 9 nor para 17 of DPCO 1979 suggest that the amount to be deposited in DPEA had anything to do with the prices of the formulations which were being fixed in terms of paras 10 and 11 of the said order. Para 7(2) of the order, which speaks of utilization of bulk drugs in the formulations, makes it abundantly clear that the amount to be deposited into DPEA in this regard related only to the common selling price of bulk drug which was lower than the price allowed to him in the price of his formulations. As a natural consequence, therefore, the demand for the amount to be deposited in DPEA account could be based and calculated only on the basis of the prices of the bulk drugs consumed in the formulations and not on the basis of notional prices of formulations. The prices of the formulations, therefore, were not at all relevant for the purpose. Thus the impugned demands, which were based on the formulations prices suffer from the vice of considering the formulations prices and not the quantity and the price of the bulk drugs consumed therein." (Emphasis supplied)45). In our view, the fallacy in the impugned judgment appears to be in not properly analyzing the clear meaning of the expressions used in para 7(2)(b) of DPCO 1979.46) A plain reading of Para 7(2)(a) of the DPCO 1979 shows what can be directed by the Central Government to be deposited into DPEA by the manufacturer of bulk drugs and any formulations using those drugs or procured from outside, as in the present case. Firstly, Para 7(2)(a) applies to a manufacturer of formulations. The manufacturer must utilize in the formulation(s) any bulk drug. The bulk drug could be either from his own production or procured from any other sources. If the price of such bulk drugs is notified as lower than the price allowed to him in the price of his formulations, the Central Government may require the manufacturer of formulation the excess amount determined to be deposited into DPEA. Under Para 7(2)(b), the Central Government may direct the manufacturer of formulations to sell the formulations at such prices as may be fixed by the Government.47) The Central Government, while issuing the letters/demand dated 18.06.1990 and 16.11.1990, has specifically bifurcated the differential amount that requires to be paid by the respondent-company on the bulk drugs and their formulations. In the letter, it is made clear that in view of the notification dated 20.11.1986, the respondent-company has to deposit into DPEA the difference between the retention price and pooled price for the sale of bulk drugs. Similarly, since the respondent-company manufactures drug formulations by captive consumption of the bulk drugs, the Central Government initially could not fix the retention price of the formulations in view of the interim orders passed by the High Court while admitting the writ petition filed by the respondent-company. After disposal of the writ petitions filed and in view of the specific liberty that was granted by the High Court in the petitions filed by the respondent-company, the Central Government directed the company to pay not only the difference amount payable for the price of bulk drugs but also those drugs which are utilized in their formulations over and above the prices fixed by the Central Government. In our view, since the para 7(2)(a) of DPCO 1979 does not admit a construction which the respondent-company suggests, it is difficult to hold that under para 7(2)(a) of DPCO 1979, the Central Government could issue demand on the basis of bulk drugs only and not on the basis of difference between the prices of bulk drugs and the prices of the formulations in which the company had used those bulk drugs.48). Before we conclude, it is important to mention that the respondent company (and similar companies) not only manufacture bulk drugs but also use them for their drug formulations for its supply in retail vending and thereby, the ordinary consumer is burdened with a higher price than what they could have got at a lesser price. Since that is taken care of in para 17 of DPCO 1979, it may not be necessary to lean towards the submissions made by learned counsel for the respondent-company.
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the stay not been granted have been taken into consideration. The prices to which your company was entitled to are shown in column 5 of the statement and these prices have been worked out by the Expert Body, namely, Bureau (sic.) of Industrial Costs and prices based on the price of the bulk drug as upheld by the High Court and other parameters like conversion cost, packing charges, packing materials excipients (sic.) etc. As prevalent in May, 1981, the norms of conversion cost and packing charges for formulations have also been upheld by the Honble Supreme Court.3. Liability in respect of two packs of formulations indicated at S.No.17 and 18 (sic.) would be communicated to you after the details of the price prevailing on 12th May, 1981 and the basis thereof are communicated to the Government.4. The liability in respect of 6 packs of formulations would be finalized after the details of packs produced/sold during 12th May, 1981 to 30th June, 1981 are made available. It is brought to your notice once again that as already advised in this Ministrys letter of even number dated the 20th September, 1990 and as directed by the Honble High Court vide its orders dated the 9th August, 1990 your company is still to make available the details in respect of bulk drug Betamathasone and its formulations after 25th August, 1987. Please expedite these details also so that your liability can be finalized for this period as well.Yours faithfully,Sd./-(J.L. Sharma)UNDER SECRETARY TOTHE GOVERNMENT OF INDIA"44). Now let us see how the High Court has decided this issue. The Court after noticing elaborately the intent, object and the possible construction that could be placed on paras 3 to 9 and para 17 has observed that:"Neither paras 3 to 9 nor para 17 of DPCO 1979 suggest that the amount to be deposited in DPEA had anything to do with the prices of the formulations which were being fixed in terms of paras 10 and 11 of the said order. Para 7(2) of the order, which speaks of utilization of bulk drugs in the formulations, makes it abundantly clear that the amount to be deposited into DPEA in this regard related only to the common selling price of bulk drug which was lower than the price allowed to him in the price of his formulations. As a natural consequence, therefore, the demand for the amount to be deposited in DPEA account could be based and calculated only on the basis of the prices of the bulk drugs consumed in the formulations and not on the basis of notional prices of formulations. The prices of the formulations, therefore, were not at all relevant for the purpose. Thus the impugned demands, which were based on the formulations prices suffer from the vice of considering the formulations prices and not the quantity and the price of the bulk drugs consumed therein." (Emphasis supplied)45). In our view, the fallacy in the impugned judgment appears to be in not properly analyzing the clear meaning of the expressions used in para 7(2)(b) of DPCO 1979.46) A plain reading of Para 7(2)(a) of the DPCO 1979 shows what can be directed by the Central Government to be deposited into DPEA by the manufacturer of bulk drugs and any formulations using those drugs or procured from outside, as in the present case. Firstly, Para 7(2)(a) applies to a manufacturer of formulations. The manufacturer must utilize in the formulation(s) any bulk drug. The bulk drug could be either from his own production or procured from any other sources. If the price of such bulk drugs is notified as lower than the price allowed to him in the price of his formulations, the Central Government may require the manufacturer of formulation the excess amount determined to be deposited into DPEA. Under Para 7(2)(b), the Central Government may direct the manufacturer of formulations to sell the formulations at such prices as may be fixed by the Government.47) The Central Government, while issuing the letters/demand dated 18.06.1990 and 16.11.1990, has specifically bifurcated the differential amount that requires to be paid by the respondent-company on the bulk drugs and their formulations. In the letter, it is made clear that in view of the notification dated 20.11.1986, the respondent-company has to deposit into DPEA the difference between the retention price and pooled price for the sale of bulk drugs. Similarly, since the respondent-company manufactures drug formulations by captive consumption of the bulk drugs, the Central Government initially could not fix the retention price of the formulations in view of the interim orders passed by the High Court while admitting the writ petition filed by the respondent-company. After disposal of the writ petitions filed and in view of the specific liberty that was granted by the High Court in the petitions filed by the respondent-company, the Central Government directed the company to pay not only the difference amount payable for the price of bulk drugs but also those drugs which are utilized in their formulations over and above the prices fixed by the Central Government. In our view, since the para 7(2)(a) of DPCO 1979 does not admit a construction which the respondent-company suggests, it is difficult to hold that under para 7(2)(a) of DPCO 1979, the Central Government could issue demand on the basis of bulk drugs only and not on the basis of difference between the prices of bulk drugs and the prices of the formulations in which the company had used those bulk drugs.48). Before we conclude, it is important to mention that the respondent company (and similar companies) not only manufacture bulk drugs but also use them for their drug formulations for its supply in retail vending and thereby, the ordinary consumer is burdened with a higher price than what they could have got at a lesser price. Since that is taken care of in para 17 of DPCO 1979, it may not be necessary to lean towards the submissions made by learned counsel for the respondent-company.
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Verigamto Naveen Vs. Government of Andhra Pradesh and ors | agencies. We may advert to three decisions of this Court in M/s Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, 1989(3) SCC 293; Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors., 1990(3) SCC 752; and Srilekha Vidyarthi v. State of U.P., AIr 1991 SC 537 . Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of a pertains to contract, brings within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in cancelling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.21. The fact that the cancellation of sub-leases or withdrawal of consent being void flowing from the order of the Full Bench decision of the High Court has also been noticed by this Court in its interim order dated 6.10.1994 and hence the High Court proceeding on that basis in its order is not incorrect.22. There was, therefore, no impediment for the High Court to find out whether there is breach of contract so as to enable the parties to claim damages or the liability of the Corporation or the Government to make good the same. 23. For the sake of convenience, we will proceed to examine first the question as to the exercise of discretion by the High Court in extending the period of lease or sub-lease after its original period had expired. 24. In Kalayanpur Lime Works Ltd. v. State of Bihar & Anr., AIR 1954 SC 165 , the Government had entered into a contract with lime Company and when it entered into the said contract it had an imperfect title inasmuch as it could not grant a fresh lease to anyone during the existence of the previous lease in favour of another party and when the lease in favour of the another party expired the impediment in the way of the Government to grant stood removed and the Lime Companys right to get the lease revived in its favour was urged. It was held that though Section 18 of the Specific Relief Act, 1877 was attracted to the case but as substantial period of lease had already expired, relief could be given only under Section 15 of the Specific Relief Act. Therefore, in that case this Court did not think that it was a fit case for grant of decree for specific performance as there are only a few months left before unexpired portion of the lease will run out. Indeed by the time the lease comes to be extended in pursuance of the Courts order it would be scarcely worthwhile to carry on quarrying operations. 25. There are at least three weighty reasons as to why the period of sub-lease could not have been extended after the expiry of period of original lease and they are :- (i) In most of the present cases, the interruptions in respect of which the claim is made is for a period of about 10 months and in one other case an additional period of 6-1/2 months. In some cases the lease having expired as early as in the year 1995 or in others in 1998, it would not be appropriate to direct the extension of lease in the year 2001 particularly when the sub-leases have expired as a result of which the parties have to reestablish their infrastructure and put in great deal of logistical support though for a short period once over again, to work the mines which will have a pernicious effect on the mines and the parties concerned.(ii) The claim for renewal of leases has been refused already as the policy of the Government is not to grant lease or sub-lease in favour of private parties. Now to ask to the Government to enter into fresh contracts will be contrary to its policy.(iii) When several malpractices had been pointed out by House Committee, it would not be in public interest to extend the period of lease which will perpetuate the same. 26. therefore, the High Court ought not to have exercised its discretion for extension of period of sub-lease. 27. For the reasons aforesaid, we think, it would be appropriate to set aside the order made by the High Court and allow these appeals to the extent the High Court has granted the relief of extension of the sub-leases. 28. Insofar as claim for damages is concerned, it is unnecessary for us to decide the same inasmuch as it would be appropriate for the parties to work out their respective rights by making an appropriate claim in a civil suit to b filed by the each one of them. We have refused the relief of restitution by way of extension of lease period without examining the question as to whether there is breach of contract as a consequence of which the party aggrieved is entitled to damages. That aspect is left open to be considered or be dealt with in the civil suit irrespective of and uninfluenced by the observations or findings of the High Court on this aspect. If such a civil suit is filed, the cause of action should be reckoned only from the date of this order when we finally pronounced upon the rights of the parties, which protection will adequately take care of the interests of the writ petitioners. | 1[ds]19. Under Section 4A of the Act the restriction to grant lease without permission of the Central Government is upon the State Government and not upon the Corporation to which the State Government had already granted lease. Hence, lease being void ab initio would not arise. The content to grant the sub0leases had been given a long before to coming into force of the amendment to Rule 37 of the Rules and inasmuch as in all sub-leases (except in the case of V. Ramalingaiah, which came into existence only in the month of May, 1991, i.e., after 20.2.1991, the date of amendment) this amended rule which required a prior approval of the Central Government is not required and, therefore, the contention that the sub-leases are valid ab initio would not arise. Therefore, the view taken by the Full bench on this aspect is correct.20. On the question that the relief as sought for and granted by the High Court arises purely in the contractual field and, therefore, the High Court ought not to have exercised its power under Article 226 of the Constitution placed very heavy reliance on the decision of the Andhra Pradesh High Court in Y.S. Raja reddy v. A.P. Mining Corporation Ltd., 1988(2) ALT 722, and the decisions of this Court in Harshankar v. Deputy Excise & Taxation Commissioner, 1975(1) SCC 737; Radhakrishna Agarwal v. State of Bihar, AIr 1977 SC 1977 SC 1496; Ram Lal & Sons v. State of Rajasthan, AIR 1976 SC 54 ; Shiv Shankar Dal Mills v. State of haryana, AIr 1980 SC 1037 ; Ramana v. I.A. Authority of India, AIR 1979 SC 1628 ; Basheeshar Nath v. Income Tax Commissioner, AIr 1959 SC 149 . Though there is one set of cases rendered by this Court of the type arising in Radhakrishna Agarwals case, much water has flown in the stream of judicial review in contractual field. In cases where the decision making authority exceeded its statutory power or committed breach of rules or principles of natural justice in exercise of such power or its decision is perverse or passed an irrational order, this Court has interceded even after the contract was entered into between the parties and the Government and its agencies. We may advert to three decisions of this Court in M/s Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, 1989(3) SCC 293; Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors., 1990(3) SCC 752; and Srilekha Vidyarthi v. State of U.P., AIr 1991 SC 537 . Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of a pertains to contract, brings within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in cancelling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.21. The fact that the cancellation of sub-leases or withdrawal of consent being void flowing from the order of the Full Bench decision of the High Court has also been noticed by this Court in its interim order dated 6.10.1994 and hence the High Court proceeding on that basis in its order is not incorrect.22. There was, therefore, no impediment for the High Court to find out whether there is breach of contract so as to enable the parties to claim damages or the liability of the Corporation or the Government to make good the same. | 1 | 4,455 | 755 | ### Instruction:
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agencies. We may advert to three decisions of this Court in M/s Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, 1989(3) SCC 293; Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors., 1990(3) SCC 752; and Srilekha Vidyarthi v. State of U.P., AIr 1991 SC 537 . Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of a pertains to contract, brings within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in cancelling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.21. The fact that the cancellation of sub-leases or withdrawal of consent being void flowing from the order of the Full Bench decision of the High Court has also been noticed by this Court in its interim order dated 6.10.1994 and hence the High Court proceeding on that basis in its order is not incorrect.22. There was, therefore, no impediment for the High Court to find out whether there is breach of contract so as to enable the parties to claim damages or the liability of the Corporation or the Government to make good the same. 23. For the sake of convenience, we will proceed to examine first the question as to the exercise of discretion by the High Court in extending the period of lease or sub-lease after its original period had expired. 24. In Kalayanpur Lime Works Ltd. v. State of Bihar & Anr., AIR 1954 SC 165 , the Government had entered into a contract with lime Company and when it entered into the said contract it had an imperfect title inasmuch as it could not grant a fresh lease to anyone during the existence of the previous lease in favour of another party and when the lease in favour of the another party expired the impediment in the way of the Government to grant stood removed and the Lime Companys right to get the lease revived in its favour was urged. It was held that though Section 18 of the Specific Relief Act, 1877 was attracted to the case but as substantial period of lease had already expired, relief could be given only under Section 15 of the Specific Relief Act. Therefore, in that case this Court did not think that it was a fit case for grant of decree for specific performance as there are only a few months left before unexpired portion of the lease will run out. Indeed by the time the lease comes to be extended in pursuance of the Courts order it would be scarcely worthwhile to carry on quarrying operations. 25. There are at least three weighty reasons as to why the period of sub-lease could not have been extended after the expiry of period of original lease and they are :- (i) In most of the present cases, the interruptions in respect of which the claim is made is for a period of about 10 months and in one other case an additional period of 6-1/2 months. In some cases the lease having expired as early as in the year 1995 or in others in 1998, it would not be appropriate to direct the extension of lease in the year 2001 particularly when the sub-leases have expired as a result of which the parties have to reestablish their infrastructure and put in great deal of logistical support though for a short period once over again, to work the mines which will have a pernicious effect on the mines and the parties concerned.(ii) The claim for renewal of leases has been refused already as the policy of the Government is not to grant lease or sub-lease in favour of private parties. Now to ask to the Government to enter into fresh contracts will be contrary to its policy.(iii) When several malpractices had been pointed out by House Committee, it would not be in public interest to extend the period of lease which will perpetuate the same. 26. therefore, the High Court ought not to have exercised its discretion for extension of period of sub-lease. 27. For the reasons aforesaid, we think, it would be appropriate to set aside the order made by the High Court and allow these appeals to the extent the High Court has granted the relief of extension of the sub-leases. 28. Insofar as claim for damages is concerned, it is unnecessary for us to decide the same inasmuch as it would be appropriate for the parties to work out their respective rights by making an appropriate claim in a civil suit to b filed by the each one of them. We have refused the relief of restitution by way of extension of lease period without examining the question as to whether there is breach of contract as a consequence of which the party aggrieved is entitled to damages. That aspect is left open to be considered or be dealt with in the civil suit irrespective of and uninfluenced by the observations or findings of the High Court on this aspect. If such a civil suit is filed, the cause of action should be reckoned only from the date of this order when we finally pronounced upon the rights of the parties, which protection will adequately take care of the interests of the writ petitioners.
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19. Under Section 4A of the Act the restriction to grant lease without permission of the Central Government is upon the State Government and not upon the Corporation to which the State Government had already granted lease. Hence, lease being void ab initio would not arise. The content to grant the sub0leases had been given a long before to coming into force of the amendment to Rule 37 of the Rules and inasmuch as in all sub-leases (except in the case of V. Ramalingaiah, which came into existence only in the month of May, 1991, i.e., after 20.2.1991, the date of amendment) this amended rule which required a prior approval of the Central Government is not required and, therefore, the contention that the sub-leases are valid ab initio would not arise. Therefore, the view taken by the Full bench on this aspect is correct.20. On the question that the relief as sought for and granted by the High Court arises purely in the contractual field and, therefore, the High Court ought not to have exercised its power under Article 226 of the Constitution placed very heavy reliance on the decision of the Andhra Pradesh High Court in Y.S. Raja reddy v. A.P. Mining Corporation Ltd., 1988(2) ALT 722, and the decisions of this Court in Harshankar v. Deputy Excise & Taxation Commissioner, 1975(1) SCC 737; Radhakrishna Agarwal v. State of Bihar, AIr 1977 SC 1977 SC 1496; Ram Lal & Sons v. State of Rajasthan, AIR 1976 SC 54 ; Shiv Shankar Dal Mills v. State of haryana, AIr 1980 SC 1037 ; Ramana v. I.A. Authority of India, AIR 1979 SC 1628 ; Basheeshar Nath v. Income Tax Commissioner, AIr 1959 SC 149 . Though there is one set of cases rendered by this Court of the type arising in Radhakrishna Agarwals case, much water has flown in the stream of judicial review in contractual field. In cases where the decision making authority exceeded its statutory power or committed breach of rules or principles of natural justice in exercise of such power or its decision is perverse or passed an irrational order, this Court has interceded even after the contract was entered into between the parties and the Government and its agencies. We may advert to three decisions of this Court in M/s Dwarkadas Marfatia & Sons v. Board of Trustees of the Port of Bombay, 1989(3) SCC 293; Mahabir Auto Stores & Ors. v. Indian Oil Corporation & Ors., 1990(3) SCC 752; and Srilekha Vidyarthi v. State of U.P., AIr 1991 SC 537 . Where the breach of contract involves breach of statutory obligation when the order complained of was made in exercise of statutory power by a statutory authority, though cause of action arises out of a pertains to contract, brings within the sphere of public law because the power exercised is apart from contract. The freedom of the Government to enter into business with anybody it likes is subject to the condition of reasonableness and fair play as well as public interest. After entering into a contract, in cancelling the contract which is subject to terms of the statutory provisions, as in the present case, it cannot be said that the matter falls purely in a contractual field. Therefore, we do not think it would be appropriate to suggest that the case on hand is a matter arising purely out of a contract and, therefore, interference under Article 226 of the Constitution is not called for. This contention also stands rejected.21. The fact that the cancellation of sub-leases or withdrawal of consent being void flowing from the order of the Full Bench decision of the High Court has also been noticed by this Court in its interim order dated 6.10.1994 and hence the High Court proceeding on that basis in its order is not incorrect.22. There was, therefore, no impediment for the High Court to find out whether there is breach of contract so as to enable the parties to claim damages or the liability of the Corporation or the Government to make good the same.
|
Jahar Roy (Dead Through L.Rs) And Anr Vs. Premji Bhimji Mansata And Anr | Court.17. Moreover, as has rightly been held in the impugned judgment of the Calcutta High Court, the two contesting defendants in this case became tenants on sufferance or trespassers on the termination of their licence. A co-owner could in the case of indivisible property, well have maintained a suit for the recovery of the whole from persons holding unlawful possession thereof. Reference in this connection may be made to the decisions in Mahabala Bhatta v. Kunhanna Bhatta [ILR 21 Mad 373 : 8 MLJ 598], Chandri v. Daji Bhau [ILR 24 Bom 504; 2 Bom Lr 491], Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh [ILR 35 Cal 807 : 7 CLJ 483], Syed Ahmad Sahib Shutari v. The Magnesite Syndicate Ltd. [ILR 39 Mad 501 : 29 IC 60 : 28 MLJ 598] and Maganlal Dulabhdas v. Bhadar Purshottam [AIR 1927 Bom 192 : 29 Bom LR 222 : 101 IC 35].18. The remaining argument of Mr. Mazumdar relates to the question whether the defendants were entitled to stage any play other than "Katha Kao" which was actually staged during the week before the expiry of one year from January 17, 1962 as that was the date of the agreement. The trial Judge found on evidence of defendant Jahar Roy that the play was actually staged one week before the expiry of the period of one year stipulated in the agreement. Jahar Roy has also admitted that the same play is being run only once a week thereafter, and that other plays are being staged on other dates. On this basis Mr. Mazumdar has argued that the defendants are entitled to the benefit of the proviso to paragraph 1 of the agreement between the parties which has been extracted in an earlier part of the judgement.19. A reading of paragraph 1 shows that the defendants, as the licensees, were allowed to use the theatre and the equipment for a period of one year, for one evening show on each Thursday and each Saturday, and one matinee show, one evening show on each Sunday and other holidays, and also one whole night performance on the occasion of Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes on Sundays. It is not in dispute before us that they were only staging "Katha Kao" during the week before the expiry of the period of one year from the date of the agreement, so that that was it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha Kao" after the expiry of period of the licence, there is nothing wrong with the concurrent finding that the "normal run" of "Katha Kao" came to an end when the defendants started staging the other dramas three times a week and relegated "Katha Kao" to one show in the week. This is the plain and simple meaning of the paragraph bearing on this aspect of the controversy, and we are unable to agree with Mr. Mazumdar that it was permissible for the defendants to continue with the licence merely because they continued to play "Katha Kao" once a week and the other plays another days, at their option. Such a course could not be said to be the "normal run" of "Katha Kao", and was clearly abnormal. Learned Counsel has not been able to point out how the finding of fact of the High Court that the "normal run" of "Katha Kao" came to an end when the defendants started performing another drama along with it after the expiry of one years period of the licence could be said to have been vitiated by any error of law or procedure.20. Mr. Mazumdar tried to a argue that the agreement dated January 17, 1962 could not be said to have been validly terminated by the plaintiff as "the Management" did not refund the sum of Rs. 10, 000 or any part thereof in accordance with the requirement of paragraph 16 of the agreement. The argument was however found to be untenable as no such plea was taken in the written statement and it was not the subject-matter of any issue during the course of the trial.21. This leaves for consideration the argument which Mr. Mazumdar has advanced on behalf of the legal representatives of Jahar Roy (defendant 1). As has been stated, he has invited our attention to the suit which is said to have been filed by the plaintiff as far back as February 25, 1970 for a declaration that the partnership between him and defendant Jitendra Nath Bose stood dissolved on and from February 24, 1970 and for some other reliefs. Out attention has also been invited to the trial Courts order for the appointment of joint Receivers in that case. It has been argued on that basis that as the joint Receivers took possession on April 16, 1970, the plaintiff was not entitled to claim any relief in the suit which is the subject matter of the controversy before us, that the Receivers were necessary parties and that the plaintiff no longer had any right to claim any of the reliefs in this suit because of the total failure of his cause of action. It would be sufficient for us to say that none of these arguments was advanced in the appeal before the High Court and we do not find it possible to allow them to be raised in this second appeal for the first time. Even otherwise, the arguments have no bearing on the appeal before us. | 0[ds]19. A reading of paragraph 1 shows that the defendants, as the licensees, were allowed to use the theatre and the equipment for a period of one year, for one evening show on each Thursday and each Saturday, and one matinee show, one evening show on each Sunday and other holidays, and also one whole night performance on the occasion of Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes on Sundays. It is not in dispute before us that they were only staging "Katha Kao" during the week before the expiry of the period of one year from the date of the agreement, so that that was it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha Kao" after the expiry of period of the licence, there is nothing wrong with the concurrent finding that the "normal run" of "Katha Kao" came to an end when the defendants started staging the other dramas three times a week and relegated "Katha Kao" to one show in the week. This is the plain and simple meaning of the paragraph bearing on this aspect of the controversy, and we are unable to agree with Mr. Mazumdar that it was permissible for the defendants to continue with the licence merely because they continued to play "Katha Kao" once a week and the other plays another days, at their option. Such a course could not be said to be the "normal run" of "Katha Kao", and was clearly abnormal. Learned Counsel has not been able to point out how the finding of fact of the High Court that the "normal run" of "Katha Kao" came to an end when the defendants started performing another drama along with it after the expiry of one years period of the licence could be said to have been vitiated by any error of law orsee no reason for taking a different view and find no merit in the argument of Mr. Mazumdar to the contrary. He no doubt invited our attention to Vyankatesh Oil Mill Co. v. N.V. Velmahomed [AIR 1928 Bom 191 : 109 IC 99 : 30 BLJR 117], Vagha Jesing v. Manilal Bhogilal Desai [AIR 1935 Bom 262 : 156 IC 898 : 37 BLJR 249], Hari Singh v. Firm KaramRam [AIR 1927 Lah 115 : 100 IC 721 : 8 Lah 1], Sobhanadri Appa Rao Bahadur v. Parthasarathi Appa Rao Savai Aswa Rao Bahadur [AIR 1932 Mad : 137 IC 274 : 62 MLJ 154] and Nathaniel Uraon v. Mahadeo Uraon [AIR 1957 Pat 511 : ILR 36 Pat 273], but they were cases in which one or the other joint promisee was left out altogether from the frame of the suit, or the case was by way of an action in tort. Learned was in fact unable to refer to any case where it has been held that one joint promisee cannot maintain a suit by making theIt cannot therefore be urged with any justification that a contrary view has been stated bythe rule does not in fact enure to the benefit of the contesting defendant. When the matter came up for specific consideration in Burnsidev. Harrison Marks Productions Ltd. [(1968) 2 All ER286] the position obtaining in England was set out by Lord Denning, M.R. in the following words :I think that the Judges decision proceeds on a misunderstanding of Johnsonv. Stephens and Carter Ltd. [1923 All ER701]. That case shows that, when a promise is made to two persons jointly, then one of them cannot ordinarily require the other to join as plaintiff, and cannot add him as a defendant, unless he offers him an indemnity against costs. This, however, is a rule made for the protection of the joint contractor whom it is sought to add as plaintiff or defendant. It is not made for the benefit of the other contracting party who is the defendant to the action. He cannot insist on the indemnity or the offer of it : for it is no concern of his. All that he can require is that both the persons, with whom he made his contract, are before the court. So long as they are both there, even if one is a defendant, he cannot complain.It would thus appear that there is no force in the argument of Mr. Mazumdar to theargument could not, however, be examined as it was not based on any such plea in the written statement and was not urged for consideration in the Highargument was however found to be untenable as no such plea was taken in the written statement and it was not theof any issue during the course of thewould be sufficient for us to say that none of these arguments was advanced in the appeal before the High Court and we do not find it possible to allow them to be raised in this second appeal for the first time. Even otherwise, the arguments have no bearing on the appeal before us. | 0 | 4,585 | 1,028 | ### Instruction:
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Court.17. Moreover, as has rightly been held in the impugned judgment of the Calcutta High Court, the two contesting defendants in this case became tenants on sufferance or trespassers on the termination of their licence. A co-owner could in the case of indivisible property, well have maintained a suit for the recovery of the whole from persons holding unlawful possession thereof. Reference in this connection may be made to the decisions in Mahabala Bhatta v. Kunhanna Bhatta [ILR 21 Mad 373 : 8 MLJ 598], Chandri v. Daji Bhau [ILR 24 Bom 504; 2 Bom Lr 491], Gopal Ram Mohuri v. Dhakeshwar Pershad Narain Singh [ILR 35 Cal 807 : 7 CLJ 483], Syed Ahmad Sahib Shutari v. The Magnesite Syndicate Ltd. [ILR 39 Mad 501 : 29 IC 60 : 28 MLJ 598] and Maganlal Dulabhdas v. Bhadar Purshottam [AIR 1927 Bom 192 : 29 Bom LR 222 : 101 IC 35].18. The remaining argument of Mr. Mazumdar relates to the question whether the defendants were entitled to stage any play other than "Katha Kao" which was actually staged during the week before the expiry of one year from January 17, 1962 as that was the date of the agreement. The trial Judge found on evidence of defendant Jahar Roy that the play was actually staged one week before the expiry of the period of one year stipulated in the agreement. Jahar Roy has also admitted that the same play is being run only once a week thereafter, and that other plays are being staged on other dates. On this basis Mr. Mazumdar has argued that the defendants are entitled to the benefit of the proviso to paragraph 1 of the agreement between the parties which has been extracted in an earlier part of the judgement.19. A reading of paragraph 1 shows that the defendants, as the licensees, were allowed to use the theatre and the equipment for a period of one year, for one evening show on each Thursday and each Saturday, and one matinee show, one evening show on each Sunday and other holidays, and also one whole night performance on the occasion of Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes on Sundays. It is not in dispute before us that they were only staging "Katha Kao" during the week before the expiry of the period of one year from the date of the agreement, so that that was it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha Kao" after the expiry of period of the licence, there is nothing wrong with the concurrent finding that the "normal run" of "Katha Kao" came to an end when the defendants started staging the other dramas three times a week and relegated "Katha Kao" to one show in the week. This is the plain and simple meaning of the paragraph bearing on this aspect of the controversy, and we are unable to agree with Mr. Mazumdar that it was permissible for the defendants to continue with the licence merely because they continued to play "Katha Kao" once a week and the other plays another days, at their option. Such a course could not be said to be the "normal run" of "Katha Kao", and was clearly abnormal. Learned Counsel has not been able to point out how the finding of fact of the High Court that the "normal run" of "Katha Kao" came to an end when the defendants started performing another drama along with it after the expiry of one years period of the licence could be said to have been vitiated by any error of law or procedure.20. Mr. Mazumdar tried to a argue that the agreement dated January 17, 1962 could not be said to have been validly terminated by the plaintiff as "the Management" did not refund the sum of Rs. 10, 000 or any part thereof in accordance with the requirement of paragraph 16 of the agreement. The argument was however found to be untenable as no such plea was taken in the written statement and it was not the subject-matter of any issue during the course of the trial.21. This leaves for consideration the argument which Mr. Mazumdar has advanced on behalf of the legal representatives of Jahar Roy (defendant 1). As has been stated, he has invited our attention to the suit which is said to have been filed by the plaintiff as far back as February 25, 1970 for a declaration that the partnership between him and defendant Jitendra Nath Bose stood dissolved on and from February 24, 1970 and for some other reliefs. Out attention has also been invited to the trial Courts order for the appointment of joint Receivers in that case. It has been argued on that basis that as the joint Receivers took possession on April 16, 1970, the plaintiff was not entitled to claim any relief in the suit which is the subject matter of the controversy before us, that the Receivers were necessary parties and that the plaintiff no longer had any right to claim any of the reliefs in this suit because of the total failure of his cause of action. It would be sufficient for us to say that none of these arguments was advanced in the appeal before the High Court and we do not find it possible to allow them to be raised in this second appeal for the first time. Even otherwise, the arguments have no bearing on the appeal before us.
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19. A reading of paragraph 1 shows that the defendants, as the licensees, were allowed to use the theatre and the equipment for a period of one year, for one evening show on each Thursday and each Saturday, and one matinee show, one evening show on each Sunday and other holidays, and also one whole night performance on the occasion of Sivaratri and Janmasthmi. The controversy in this case does not relate to the performances on public holidays other than Sundays or on the occasion of Sivaratri and Janmasthmi. So for all practical purposes the defendants were entitled to four shows in a week, including two shoes on Sundays. It is not in dispute before us that they were only staging "Katha Kao" during the week before the expiry of the period of one year from the date of the agreement, so that that was it "normal run". It follows therefore that as no other drama was being staged in the week preceding the expiry of the period of the licence, the benefit of the proviso could enure only for "Katha Kao" and not for "Swikriti" or any other drama. As the defendants staged "Adarsh Hindu Hotel", "Nishkriti" and "Swikriti" along with "Katha Kao" after the expiry of period of the licence, there is nothing wrong with the concurrent finding that the "normal run" of "Katha Kao" came to an end when the defendants started staging the other dramas three times a week and relegated "Katha Kao" to one show in the week. This is the plain and simple meaning of the paragraph bearing on this aspect of the controversy, and we are unable to agree with Mr. Mazumdar that it was permissible for the defendants to continue with the licence merely because they continued to play "Katha Kao" once a week and the other plays another days, at their option. Such a course could not be said to be the "normal run" of "Katha Kao", and was clearly abnormal. Learned Counsel has not been able to point out how the finding of fact of the High Court that the "normal run" of "Katha Kao" came to an end when the defendants started performing another drama along with it after the expiry of one years period of the licence could be said to have been vitiated by any error of law orsee no reason for taking a different view and find no merit in the argument of Mr. Mazumdar to the contrary. He no doubt invited our attention to Vyankatesh Oil Mill Co. v. N.V. Velmahomed [AIR 1928 Bom 191 : 109 IC 99 : 30 BLJR 117], Vagha Jesing v. Manilal Bhogilal Desai [AIR 1935 Bom 262 : 156 IC 898 : 37 BLJR 249], Hari Singh v. Firm KaramRam [AIR 1927 Lah 115 : 100 IC 721 : 8 Lah 1], Sobhanadri Appa Rao Bahadur v. Parthasarathi Appa Rao Savai Aswa Rao Bahadur [AIR 1932 Mad : 137 IC 274 : 62 MLJ 154] and Nathaniel Uraon v. Mahadeo Uraon [AIR 1957 Pat 511 : ILR 36 Pat 273], but they were cases in which one or the other joint promisee was left out altogether from the frame of the suit, or the case was by way of an action in tort. Learned was in fact unable to refer to any case where it has been held that one joint promisee cannot maintain a suit by making theIt cannot therefore be urged with any justification that a contrary view has been stated bythe rule does not in fact enure to the benefit of the contesting defendant. When the matter came up for specific consideration in Burnsidev. Harrison Marks Productions Ltd. [(1968) 2 All ER286] the position obtaining in England was set out by Lord Denning, M.R. in the following words :I think that the Judges decision proceeds on a misunderstanding of Johnsonv. Stephens and Carter Ltd. [1923 All ER701]. That case shows that, when a promise is made to two persons jointly, then one of them cannot ordinarily require the other to join as plaintiff, and cannot add him as a defendant, unless he offers him an indemnity against costs. This, however, is a rule made for the protection of the joint contractor whom it is sought to add as plaintiff or defendant. It is not made for the benefit of the other contracting party who is the defendant to the action. He cannot insist on the indemnity or the offer of it : for it is no concern of his. All that he can require is that both the persons, with whom he made his contract, are before the court. So long as they are both there, even if one is a defendant, he cannot complain.It would thus appear that there is no force in the argument of Mr. Mazumdar to theargument could not, however, be examined as it was not based on any such plea in the written statement and was not urged for consideration in the Highargument was however found to be untenable as no such plea was taken in the written statement and it was not theof any issue during the course of thewould be sufficient for us to say that none of these arguments was advanced in the appeal before the High Court and we do not find it possible to allow them to be raised in this second appeal for the first time. Even otherwise, the arguments have no bearing on the appeal before us.
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C. Periaswami Goundan And Ors Vs. Sundaresa Iyer And Ors | the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archaks dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.17. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nowthing, therefore, need be said on the question of title of the land in respect of this temple.18. Coming to the cross-appeals by the trustees against that part of the decree of the High Court apportioning the property of the deity between the deity and the archakas, the question raised is whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temples to put the archakas in possession of specified extent of property towards their remuneration. The High Court observed thus :"On these findings, it is no doubt true that the decree in favour of the plaintiffs for possession of the properties on behalf of the deity has to be upheld subject to the consideration set forth below."Then it proceeded to consider whether any allocation of land should he made between the archakas and the trustees. After noticing the relevant decisions on the subject, it observed thus :"These decision are practically uniform except for the decisions ................(in) Brahmayya v. Rajeswaraswami Temple A. S. NNo. 237 of 1950 : (AIR 1953 Mad 580 ) and. . .. .. . . (in) Venkatadri v. Seshacharyuly, ILR 1948 Mad 46 : (AIR 1948 Mad 72 ) and have upheld the allocation of lands between the archakas and the trustees, the proportion, how were, varying with the extent of the lands and the amount of the income. None of the Judges were of the opinion that the arrangement should be a permanent and an unalterable one and it must naturally be subject to revision or alteration according to the circumstances of the case at the instance of the archakal, if it was found that the allocation was working to the detriment of either the archakas or of the temple."It concluded :"We think, therefore, in these cases, the best arrangement would be to allocate half the lands in each of the suits for the remuneration of the archakas, to be divided equally, having retard to the wet and dry extents, and leave the remaining half to the trustees, who have to meet the cost of the daily worship and accumulate the surplus in their hands as it belongs to the deity."On principle, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they according to the plaintiffs, had no title to remain in possession. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant-archakas. In the circumstances the Court has no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for temple a Court may, in an appropriate case, put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to make any such apportionment, for the allotment of a particular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumtances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to other cases. Indeed, this Court has already expressed a clear opinion on this aspect of the case in B. Satyanarayanas case, 1953 SCR 1001 : (AIR 1953 SC 195 ). Therein, Das, J., said at p. 1008 (of SCR) : (at p. 197 of AIR) thus :"In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the Archakas and to make some provision for protecting their rights, but those considerations appears to us to be entirely out of place in a suit for ejectment on proof of title. "With respect we entirely agree with the said observations. It follows the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.19. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned; have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law. | 1[ds]The basis of this doctrine is clearly brought ought by two judgments of the Judicial Committee. Lord Buckmaster, delivering the judgment in Magniram Sitaram v. Kasturbhai Manibhai, 49 Ind App 54 : (AIR 1922 PC 163) observedthe lapse of 100 years, when every party to the original inaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate, to assume that the grant was lawfully and not unlawfullySumner in Mohamad Muzafar Ali Musavi v. Jabeda Khatun 57 Ind App 125 : (AIR 1930 PC 103 ) said much to the same effect thuspresumption of an origin in some lawful title, which the Courts have so often readily made in order to support possessory rights, long and quietly enjoyed, where no actual proof of title is forthcoming, is one which is not a mere branch of the law of evidence. It is resorted to because of the failure of actual evidence.is, therefore, clear that the said principle can only be invoked where there is no acceptable evidence of the terms of theobservations are very opposite and they clearly describe the circumstances under which the archakas of the temple were allowed to be in possession of the temple lands. If that was the situation under which the archakas came into possession of the lands, they were certainly in the position of de facto trustees and they could not be mortgaging or otherwise alienating the properties claims any rights in derogation of the title of the deity. Indeed the documents on which the learned counsel relied contain clear and unambiguous admission on the part of the archakas that the land itself was the property of the deity. Exs. P.12, P-13, P-14 and P-15 are copies of mortgages executed by the archakas. Under these documents the land in their possession was mortgaged and it was described as paditharam manyam. They also disclosed that the paditharam paddy directed to be paid to the temple was more than the kist payable thereon to Government. In the prior proceedings i.e. applications preferred by the archakas for declaring the temples as excepted ones, them was no claim that the melvaram alone was granted to the deity. In other proceedings the archakas claimed that the lands were service inams, but they did not come forward with the present plea that melvaram only was granted to the deity. Further, pattas for the suit lands were transferred without any objection of the archakas in the name of the deities in 1939 and the archakas also paid contribution to the Madras Hindu Religious Endowments Board on the basis that both the varams belonged to the deity. The conduct of the archakas, therefore, is consistent with the recitals in the inam registration namely, that what was granted to the deity was the land i.e. both the varams, and that they had been put in possession and enjoyment of the said land in their capacity as archakas and de factoa consideration of the entire evidence we agree with the conclusion arrived at the by the High Court that the grant to the deity comprised both the varams in the suitprinciple, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they according to the plaintiffs, had no title to remain in possession. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant-archakas. In the circumstances the Court has no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for temple a Court may, in an appropriate case, put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to make any such apportionment, for the allotment of a particular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumtances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to otherrespect we entirely agree with the said observations. It follows the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.19. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned; have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law.At the outset it would be convenient to notice briefly the scope of the doctrine of lost grant, as the learned counsel for the appellants have strongly relied upon it. The doctrine of lost grant with its limitations has been succinctly explained by the Judicial Committce in Sankaranarayana Pillayan v. Hindu Religious Endowments Board, Madras, ILR (1948) Mad 585 at pp.: (AIR 1948 PC 25 at p. 33). The temple in that case had 4 kattalais. Though the temple had a general trustee, each of the kattalais was in the charge of a special trustee or trustees. In regard to one of the kattalais after meeting all the expenses there remained a surplus which the trustees claimed for their own benefit and in fact they were utilising the surplus for the benefit of theirreasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing in the entire interest in the land, the particulars whereof were given therein. There is no evidence that at the time the grant was made the archakas or any others weretherefore, hold that, from the recitals in the said two documents, what was granted to the deity was of both thea perusal of the order shows that his conclusion was based upon pure surmises. The Collector did not refer to any document or evidence for his conclusion. The trustees filed a suit in the Court of the Subordinate Judge, Coimbatore, for a declaration that the inam grant in favour of the plaint temple comprised both the varams. The learned Subordinate Judge held that S.of the Act had no application as the grant was to the deity and was not a service inam. The result of this litigation was that there was no final decision on the question whether the grant was of both the varams or only of the melvaram. These proceedings cannot, therefore, be of any evidentiary value in this case. Ona consideration of the entire evidence we agree with the conclusion arrived at the by the High Court that the grant to the deity comprised both the varams in the suitrelevant entries in the inam register do not countenance any contention that the melvaram interest only in the land was granted and that was confirmed to the deity. If the melvaram was granted or confirmed, the recitals would have been different. The corresponding inam statement is Ex.The entries are practically similar to those found in Ex.relating to Pongaliamman temple with some slight variations. Col. 2 makes a near distinction between ownership of the land and enjoyment. The owner is shown as Chowleswaraswami and the "present" enjoyer is shown as Chowleswaraswamis stanika. The nature of the enjoyment is described in Col. 2 thusis manifest from this recital that the land was theof the grant and the income, therefrom was derived either by direct cultivation or by leasing out the same, and the said income was enjoyed by the archaka and used for Viniyogam. The point to be noted is that theto the present archaka admitted that the produce from the land was utilized for the services of the deity. The said admission is inconsistent with the allegation that the grant was only of melvaram. The entries in Col. 13 are similar to those contained in the corresponding Ex.relating to Pongaliamman temple, and for the reasor already given, they do not support the contention that the assessment of Rs.was only granted to theA combined reading of these two documents leads to the only conclusion that both the varams were granted to the deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami temple, the subsequent conduct of the archakas belie their assertion that only melvaram interest in the land was granted to the deity. Exs. D1 of 1867,of 1868, D/3 of 1870 andof 1883 are some of the mortgages executed by the archakas of Chowleswaraswami temple. Exs.are sales. In all these documents the property is described as Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they would not have described the land they are alienating as Chowleswaraswami manyam. The description of the property as that of the deity is consistent with the title of Kudivaram also being in the deity. Further, as in the other case, the pattas were transferred in the name of the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archaks dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.17. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nowthing, therefore, need be said on the question of title of the land in respect of this temple. | 1 | 7,007 | 1,956 | ### Instruction:
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the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archaks dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.17. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nowthing, therefore, need be said on the question of title of the land in respect of this temple.18. Coming to the cross-appeals by the trustees against that part of the decree of the High Court apportioning the property of the deity between the deity and the archakas, the question raised is whether the High Court, having held that the title to the suit property vested in the deity, had jurisdiction to compel the trustees of the temples to put the archakas in possession of specified extent of property towards their remuneration. The High Court observed thus :"On these findings, it is no doubt true that the decree in favour of the plaintiffs for possession of the properties on behalf of the deity has to be upheld subject to the consideration set forth below."Then it proceeded to consider whether any allocation of land should he made between the archakas and the trustees. After noticing the relevant decisions on the subject, it observed thus :"These decision are practically uniform except for the decisions ................(in) Brahmayya v. Rajeswaraswami Temple A. S. NNo. 237 of 1950 : (AIR 1953 Mad 580 ) and. . .. .. . . (in) Venkatadri v. Seshacharyuly, ILR 1948 Mad 46 : (AIR 1948 Mad 72 ) and have upheld the allocation of lands between the archakas and the trustees, the proportion, how were, varying with the extent of the lands and the amount of the income. None of the Judges were of the opinion that the arrangement should be a permanent and an unalterable one and it must naturally be subject to revision or alteration according to the circumstances of the case at the instance of the archakal, if it was found that the allocation was working to the detriment of either the archakas or of the temple."It concluded :"We think, therefore, in these cases, the best arrangement would be to allocate half the lands in each of the suits for the remuneration of the archakas, to be divided equally, having retard to the wet and dry extents, and leave the remaining half to the trustees, who have to meet the cost of the daily worship and accumulate the surplus in their hands as it belongs to the deity."On principle, in our view, the conclusion arrived at by the learned Judges of the High Court is unsupportable. The suits were based on title and the relief asked for was the eviction of the archakas from the suit property as they according to the plaintiffs, had no title to remain in possession. The archakas raised the plea that the title of the deity was confined only to melvaram in the plaint schedule lands and that they had title to the kudivaram. Both the courts confirmed the title of the deity to both the interests and negatived the title of the defendant-archakas. In the circumstances the Court has no option but to deliver possession to the plaintiffs who had established their title to the suit properties. In a suit for framing a scheme for temple a Court may, in an appropriate case, put the archaka in possession of a portion of the temple lands towards his remuneration for services to the temple; but these are not suits for framing a scheme. That apart, there is absolutely no material either in the pleadings or in the evidence to make any such apportionment, for the allotment of a particular share to the archaka would depend upon the total income from the lands, the value of the articles required for the worship, the amount of reasonable remuneration intended to be provided and other similar circumtances. An allotment cannot possibly be made on the basis of allocations made in the circumstances and facts peculiar to other cases. Indeed, this Court has already expressed a clear opinion on this aspect of the case in B. Satyanarayanas case, 1953 SCR 1001 : (AIR 1953 SC 195 ). Therein, Das, J., said at p. 1008 (of SCR) : (at p. 197 of AIR) thus :"In a proceeding for the framing of a scheme relating to a temple it may be permissible to take into account the claims, moral if not legal, of the Archakas and to make some provision for protecting their rights, but those considerations appears to us to be entirely out of place in a suit for ejectment on proof of title. "With respect we entirely agree with the said observations. It follows the High Court went wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.19. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned; have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law.
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wrong in making an allocation of the lands between the trustees and the archakas in a suit for ejectment.19. Learned counsel for the archakas made an impassioned appeal that we should give a direction to the authorities concerned to make an apportionment of the properties on the lines suggested by the High Court, having regard to the long enjoyment of the temple lands by the archakas. Long enjoyment of the temple lands by the archakas is not a peculiar feature of this case. The authorities concerned; have made suitable arrangements for remuneration in the case of other temples and we have no doubt that they would make a reasonable provision for the archakas in the present case also for their remuneration in accordance with law.At the outset it would be convenient to notice briefly the scope of the doctrine of lost grant, as the learned counsel for the appellants have strongly relied upon it. The doctrine of lost grant with its limitations has been succinctly explained by the Judicial Committce in Sankaranarayana Pillayan v. Hindu Religious Endowments Board, Madras, ILR (1948) Mad 585 at pp.: (AIR 1948 PC 25 at p. 33). The temple in that case had 4 kattalais. Though the temple had a general trustee, each of the kattalais was in the charge of a special trustee or trustees. In regard to one of the kattalais after meeting all the expenses there remained a surplus which the trustees claimed for their own benefit and in fact they were utilising the surplus for the benefit of theirreasonable interpretation of the recitals in this document leads to the only conclusion that the Inam Commissioner was dealing in the entire interest in the land, the particulars whereof were given therein. There is no evidence that at the time the grant was made the archakas or any others weretherefore, hold that, from the recitals in the said two documents, what was granted to the deity was of both thea perusal of the order shows that his conclusion was based upon pure surmises. The Collector did not refer to any document or evidence for his conclusion. The trustees filed a suit in the Court of the Subordinate Judge, Coimbatore, for a declaration that the inam grant in favour of the plaint temple comprised both the varams. The learned Subordinate Judge held that S.of the Act had no application as the grant was to the deity and was not a service inam. The result of this litigation was that there was no final decision on the question whether the grant was of both the varams or only of the melvaram. These proceedings cannot, therefore, be of any evidentiary value in this case. Ona consideration of the entire evidence we agree with the conclusion arrived at the by the High Court that the grant to the deity comprised both the varams in the suitrelevant entries in the inam register do not countenance any contention that the melvaram interest only in the land was granted and that was confirmed to the deity. If the melvaram was granted or confirmed, the recitals would have been different. The corresponding inam statement is Ex.The entries are practically similar to those found in Ex.relating to Pongaliamman temple with some slight variations. Col. 2 makes a near distinction between ownership of the land and enjoyment. The owner is shown as Chowleswaraswami and the "present" enjoyer is shown as Chowleswaraswamis stanika. The nature of the enjoyment is described in Col. 2 thusis manifest from this recital that the land was theof the grant and the income, therefrom was derived either by direct cultivation or by leasing out the same, and the said income was enjoyed by the archaka and used for Viniyogam. The point to be noted is that theto the present archaka admitted that the produce from the land was utilized for the services of the deity. The said admission is inconsistent with the allegation that the grant was only of melvaram. The entries in Col. 13 are similar to those contained in the corresponding Ex.relating to Pongaliamman temple, and for the reasor already given, they do not support the contention that the assessment of Rs.was only granted to theA combined reading of these two documents leads to the only conclusion that both the varams were granted to the deity. Just as in the case of Pongaliamman temple so in the case of Chowleswaraswami temple, the subsequent conduct of the archakas belie their assertion that only melvaram interest in the land was granted to the deity. Exs. D1 of 1867,of 1868, D/3 of 1870 andof 1883 are some of the mortgages executed by the archakas of Chowleswaraswami temple. Exs.are sales. In all these documents the property is described as Chowleswaraswami manyam. If really the kudivaram belonged to the archakas, they would not have described the land they are alienating as Chowleswaraswami manyam. The description of the property as that of the deity is consistent with the title of Kudivaram also being in the deity. Further, as in the other case, the pattas were transferred in the name of the deity in 1939, the contributions were paid to the Hindu Religious Endowments Board on the basis that the entire interest in the lands belonged to the deity and that in other proceedings the archakas case was not that the grant to the deity was only of the melvaram but the lands were service inam lands. Though the archaks dealt with the properties by mortgaging or otherwise alienating them they never denied the title of the deity. For the foregoing reason we hold that even in the case of Chowleswaraswami temple the original grant made to the deity comprised both the varams.17. In regard to Sri Varadaraja Perumal temple, no appeal was filed by the archakas and they allowed the judgment of the High Court in regard to the title to become final. Nowthing, therefore, need be said on the question of title of the land in respect of this temple.
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Commissioner of Income Tax Vs. Hindustan Electro Graphites Ltd | the taxable turnover, was under bona fide belief that the amount of freight did not form part of the sale price and was not includable in the taxable turnover. A return cannot be said to be "false" unless there is an element of deliberateness in it. It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, the Court may, in a given case, infer deliberateness and the return may be liable to be branded as a false return. But where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a "false" return inviting imposition of penalty. This Court said that Section 43 of the Madhya Pradesh General Sales Tax Act, 1958 providing for imposition of penalty was a penal in character and unless the filing of an inaccurate return is accompanied by a guilty mind, the section cannot be involved for imposing penality. This Court further said that if the view canveased on behalf of the Revenue were accepted, the result would be that even if the assessee raised a bona fide contention that a particular item is not liable to be included in the taxable turnover, he would have to show it as forming part of the taxable turnover in his return and pay tax upon it on pain of being held liable for penalty in case his contention is ultimately found by the Court to be not acceptable. That surely could never have been intended by the Legislature, this Court as observed. 10. In Commissioner of Income-Tax v. Onkar Saran and Sons, (1992) 195 ITR 1 (SC) the assessee filed returns for the Assessment Years 1961-62 and 1962-63 disclosing incomes of Rs. 18,935 and Rs. 24,943 respectively. The assessments were completed in the total income of Rs. 28,513- and Rs. 28,463- respectively. Income-tax Officer having come to know subsequently that the assessee had failed to disclose its profits from sale of certain lands, issued notices under Section 148 for both the years. The assessee, however, disclosed the same income as in the original returns. Income-Tax Officer made additions and after completing the re-assessments on March 6, 1969 initiated proceedings under Section 271(1)(c) and the Inspecting Assistant Commissioner imposed penalty on the assessee on the basis of the amended Section 271(1)(c) w.e.f. April 1, 1968. This Court said that even in a case where a return is filed in response to a notice under Section 148 involving an element of concealment, the law applicable would be the law as it stood at the time when the original return was filed for the Assessment Year in question and not the law as it stood on the date on which the return as filed in response to notice under Section 148. 11. Decision of the Calcutta High Court in Modern Fibotex India Ltd. and another, 212 ITR 496 squarely covers the issue involved in the present appeal. Then we have to see the law on the date of filing of the return. The attract penal provisions there has been same element of lack of bonafides unless the law specifically provides otherwise.12. The case before us does not represent even a bona fide mistake. In fact it is not a case where under some mistaken belief the assessee did not disclose the cash compensatory support received by it which he could offer to tax. It is true that income by way of cash compensatory support became taxable retrospectively with effect from April, 1967 but that was by amendment of Section 28 by the Finance Act of 1990 which amendment could not have been known before the Finance Act came in to force. Levy of additional tax bears all the characteristics of penalty. Additional tax was levied as the assessee did not in his return show the income by way of cash compensatory support. Assessing Officer on that account levied additional income tax. No additional tax would have been leviable on the cash compensatory support if the Finance Act, 1990 had not so provided even though retrospectively. Assessee could not have suffered additional tax but for the Finance Act, 1990. After he had filed his return of income, which was correct as per law on the date of filing of the return, it was thereafter that the cash compensatory support also came within the sway of Section 28. When additional tax has imprint of penalty Revenue cannot be heard saying that levy of additional tax is automatic under Section 143(1A) of the Act. If additional tax could be levied in such circumstances it will be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscious if in the circumstances Section 143(1A) could be invoked to levy the additional tax. following observations by the Constitution Bench of his Court in Pannalal Binjraj and another v. The Union of India and others, (1957) 31 ITR 565 (SC are apt :- "A humane had considerate administration of the relevant provisions of the Income Tax Act would go a long way in allaying the apprehensions of the assesses and if that is done in the true spirit, no assessee will be in a position to charge the Revenue with administering the provisions of the Act with "an evil eye and unequal hand". 13. We uphold the view expressed by the Calcutta High Court. Keeping in view the principles laid by this Court it has to be held that in the circumstances of the present case levy of additional tax taking into account the income by way of cash compensatory support is not warrant. The question is answered in affirmative i.e. in favour of the assessee and against the Revenue. 14. | 0[ds]11. Decision of the Calcutta High Court in Modern Fibotex India Ltd. and another, 212 ITR 496 squarely covers the issue involved in the present appeal. Then we have to see the law on the date of filing of the return. The attract penal provisions there has been same element of lack of bonafides unless the law specifically provides otherwise.12. The case before us does not represent even a bona fide mistake. In fact it is not a case where under some mistaken belief the assessee did not disclose the cash compensatory support received by it which he could offer to tax. It is true that income by way of cash compensatory support became taxable retrospectively with effect from April, 1967 but that was by amendment of Section 28 by the Finance Act of 1990 which amendment could not have been known before the Finance Act came in to force. Levy of additional tax bears all the characteristics of penalty. Additional tax was levied as the assessee did not in his return show the income by way of cash compensatory support. Assessing Officer on that account levied additional income tax. No additional tax would have been leviable on the cash compensatory support if the Finance Act, 1990 had not so provided even though retrospectively. Assessee could not have suffered additional tax but for the Finance Act, 1990. After he had filed his return of income, which was correct as per law on the date of filing of the return, it was thereafter that the cash compensatory support also came within the sway of Section 28. When additional tax has imprint of penalty Revenue cannot be heard saying that levy of additional tax is automatic under Section 143(1A) of the Act. If additional tax could be levied in such circumstances it will be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscious if in the circumstances Section 143(1A) could be invoked to levy the additional tax. following observations by the Constitution Bench of his Court in Pannalal Binjraj and another v. The Union of India and others, (1957) 31 ITR 565 (SC are apthumane had considerate administration of the relevant provisions of the Income Tax Act would go a long way in allaying the apprehensions of the assesses and if that is done in the true spirit, no assessee will be in a position to charge the Revenue with administering the provisions of the Act with "an evil eye and unequal hand".We uphold the view expressed by the Calcutta High Court. Keeping in view the principles laid by this Court it has to be held that in the circumstances of the present case levy of additional tax taking into account the income by way of cash compensatory support is not warrant. The question is answered in affirmative i.e. in favour of the assessee and against the Revenue | 0 | 3,193 | 533 | ### 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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the taxable turnover, was under bona fide belief that the amount of freight did not form part of the sale price and was not includable in the taxable turnover. A return cannot be said to be "false" unless there is an element of deliberateness in it. It is possible that even where the incorrectness of the return is claimed to be due to want of care on the part of assessee and there is no reasonable explanation forthcoming from the assessee for such want of care, the Court may, in a given case, infer deliberateness and the return may be liable to be branded as a false return. But where the assessee does not include a particular item in the taxable turnover under a bona fide belief that he is not liable so to include it, it would not be right to condemn the return as a "false" return inviting imposition of penalty. This Court said that Section 43 of the Madhya Pradesh General Sales Tax Act, 1958 providing for imposition of penalty was a penal in character and unless the filing of an inaccurate return is accompanied by a guilty mind, the section cannot be involved for imposing penality. This Court further said that if the view canveased on behalf of the Revenue were accepted, the result would be that even if the assessee raised a bona fide contention that a particular item is not liable to be included in the taxable turnover, he would have to show it as forming part of the taxable turnover in his return and pay tax upon it on pain of being held liable for penalty in case his contention is ultimately found by the Court to be not acceptable. That surely could never have been intended by the Legislature, this Court as observed. 10. In Commissioner of Income-Tax v. Onkar Saran and Sons, (1992) 195 ITR 1 (SC) the assessee filed returns for the Assessment Years 1961-62 and 1962-63 disclosing incomes of Rs. 18,935 and Rs. 24,943 respectively. The assessments were completed in the total income of Rs. 28,513- and Rs. 28,463- respectively. Income-tax Officer having come to know subsequently that the assessee had failed to disclose its profits from sale of certain lands, issued notices under Section 148 for both the years. The assessee, however, disclosed the same income as in the original returns. Income-Tax Officer made additions and after completing the re-assessments on March 6, 1969 initiated proceedings under Section 271(1)(c) and the Inspecting Assistant Commissioner imposed penalty on the assessee on the basis of the amended Section 271(1)(c) w.e.f. April 1, 1968. This Court said that even in a case where a return is filed in response to a notice under Section 148 involving an element of concealment, the law applicable would be the law as it stood at the time when the original return was filed for the Assessment Year in question and not the law as it stood on the date on which the return as filed in response to notice under Section 148. 11. Decision of the Calcutta High Court in Modern Fibotex India Ltd. and another, 212 ITR 496 squarely covers the issue involved in the present appeal. Then we have to see the law on the date of filing of the return. The attract penal provisions there has been same element of lack of bonafides unless the law specifically provides otherwise.12. The case before us does not represent even a bona fide mistake. In fact it is not a case where under some mistaken belief the assessee did not disclose the cash compensatory support received by it which he could offer to tax. It is true that income by way of cash compensatory support became taxable retrospectively with effect from April, 1967 but that was by amendment of Section 28 by the Finance Act of 1990 which amendment could not have been known before the Finance Act came in to force. Levy of additional tax bears all the characteristics of penalty. Additional tax was levied as the assessee did not in his return show the income by way of cash compensatory support. Assessing Officer on that account levied additional income tax. No additional tax would have been leviable on the cash compensatory support if the Finance Act, 1990 had not so provided even though retrospectively. Assessee could not have suffered additional tax but for the Finance Act, 1990. After he had filed his return of income, which was correct as per law on the date of filing of the return, it was thereafter that the cash compensatory support also came within the sway of Section 28. When additional tax has imprint of penalty Revenue cannot be heard saying that levy of additional tax is automatic under Section 143(1A) of the Act. If additional tax could be levied in such circumstances it will be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscious if in the circumstances Section 143(1A) could be invoked to levy the additional tax. following observations by the Constitution Bench of his Court in Pannalal Binjraj and another v. The Union of India and others, (1957) 31 ITR 565 (SC are apt :- "A humane had considerate administration of the relevant provisions of the Income Tax Act would go a long way in allaying the apprehensions of the assesses and if that is done in the true spirit, no assessee will be in a position to charge the Revenue with administering the provisions of the Act with "an evil eye and unequal hand". 13. We uphold the view expressed by the Calcutta High Court. Keeping in view the principles laid by this Court it has to be held that in the circumstances of the present case levy of additional tax taking into account the income by way of cash compensatory support is not warrant. The question is answered in affirmative i.e. in favour of the assessee and against the Revenue. 14.
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11. Decision of the Calcutta High Court in Modern Fibotex India Ltd. and another, 212 ITR 496 squarely covers the issue involved in the present appeal. Then we have to see the law on the date of filing of the return. The attract penal provisions there has been same element of lack of bonafides unless the law specifically provides otherwise.12. The case before us does not represent even a bona fide mistake. In fact it is not a case where under some mistaken belief the assessee did not disclose the cash compensatory support received by it which he could offer to tax. It is true that income by way of cash compensatory support became taxable retrospectively with effect from April, 1967 but that was by amendment of Section 28 by the Finance Act of 1990 which amendment could not have been known before the Finance Act came in to force. Levy of additional tax bears all the characteristics of penalty. Additional tax was levied as the assessee did not in his return show the income by way of cash compensatory support. Assessing Officer on that account levied additional income tax. No additional tax would have been leviable on the cash compensatory support if the Finance Act, 1990 had not so provided even though retrospectively. Assessee could not have suffered additional tax but for the Finance Act, 1990. After he had filed his return of income, which was correct as per law on the date of filing of the return, it was thereafter that the cash compensatory support also came within the sway of Section 28. When additional tax has imprint of penalty Revenue cannot be heard saying that levy of additional tax is automatic under Section 143(1A) of the Act. If additional tax could be levied in such circumstances it will be punishing the assessee for no fault of his. That cannot ever be the legislative intent. It shocks the very conscious if in the circumstances Section 143(1A) could be invoked to levy the additional tax. following observations by the Constitution Bench of his Court in Pannalal Binjraj and another v. The Union of India and others, (1957) 31 ITR 565 (SC are apthumane had considerate administration of the relevant provisions of the Income Tax Act would go a long way in allaying the apprehensions of the assesses and if that is done in the true spirit, no assessee will be in a position to charge the Revenue with administering the provisions of the Act with "an evil eye and unequal hand".We uphold the view expressed by the Calcutta High Court. Keeping in view the principles laid by this Court it has to be held that in the circumstances of the present case levy of additional tax taking into account the income by way of cash compensatory support is not warrant. The question is answered in affirmative i.e. in favour of the assessee and against the Revenue
|
Assessing Authority-Cum-Excise and Taxation Officer, Gurgaon Vs. Messrs East India Cotton Manufacturing Company Limited Faridabad | also important to note that the word use is followed by the words "by him" clearly indicating that the use of the goods purchased in the manufacture of goods for sale must be by the registered dealer himself but these words are significantly absent after the words "for sale", On a plain grammatical construction, these words govern and qualify only "use" and cannot be projected in to the words "for sale". The goods purchased by the registered dealer must be used by him in the manufacture of goods which are intended for sale but such sale need not be by the registered dealer himself: it may be by any one.Now ordinarily when the language of a statutory provision is plain and unambiguous, there is no need to resort to the object and purpose of the enactment because in such a case, the language best dealers the intention of the law-giver. But, even if we look at the object and intendment of section 8 (1) (b), read with section 8(3) (b), we reach the same conclusion. The object of providing a lower rate of tax under 8 (1) (b) for sales of goods described in section 8 (3) (b) clearly is that when goods are purchased by a registered dealer for being used by him in the manufacture or processing of goods which are intended for sale, the goods which are ultimately sold should not become unduly expensive to the consumer by addition of a high rate of sales tax on the purchase of goods which are used in the manufacture or processing of the goods ultimately sold. Now if this be the object of section 8 (1) (b) read with section 8 (3) (b) it should be immaterial whether the sale of the manufactured or processed goods is by the registered dealer manufacturing or processing goods or by another person for whom the goods are manufactured or processed by the registered dealer. The intendment of the statutory provision being that the cost of the manufactured or processed goods to the consumer should not be unduly enhanced by reason of higher rate of tax on the goods used in the manufactured or processing of the goods sold, it is obvious that if this intendment is to be ful ly effectuated, the benefit of the statutory provision should be available irrespective of whether the manufactured or processed goods are sold to the consumer by the registered dealer or by some one else who has got the same manufactured by the registered dealer. It was for this reason that the legislature deliberately omitted to add the words "by him" after the words "for sale" so as to make it clear that this sub clause of section 8 (3) (b) would apply even if the goods manufactured or processed by the registered dealer were intended for sale by some one else. The words "for sale" following upon the word goods clearly indicate that the goods manufactured or processed by the registered dealer must be goods for sa le or in other words, they must be goods intended for sale and it is immaterial whether they are intended for sale by the registered dealer himself or by anyone else. This sub clause of section 8 (3) (b) would therefore clearly cover a case where a registered dealer manufactures or processes goods for a third party on a job contract and uses in the manufacture or processing of such goods, materials purchased by him against his Certificate of Registration and the declarations in Form C, so long as the manufactured or processed goods are intended for sale by such third party. It is of course, true that if proceedings are taken against the registered dealer under section 10 clause (d) or section 10A, the question would arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the Court or the competent Authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place on the language of section 8 (3) (b) the only construction which it can reasonably bear.We are therefore of the view that the Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job contract basis, its case would be covered by the terms of the second sub- clause of section 8 (3) (b), provided that the textiles so sized, bleached and dyed by the assessee were intended for sale by such third party. If it is proved in any proceedings initiated under section 10 (d) or section 10A that the textiles sized, bleached or dyed by the assessee for a third party on job contract basis were not intended for sale by such third party, as would be evident if s uch textiles were in fact not sold by the third party but were used for its own purposes, the assessee would incur the penalty prescribed in those sections.6. We find that there are three decisions of three different High Court which have taken a view different from the one taken by us. One is the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax v. S. R. Sharma 31 Sales Tax Cases, 480 , the other is the decision of the Gujarat High Court in Navsari Cotton Mills Limited v. State of Gujarat 37 Sales Tax Cases 104 and the third is the decision of the Kerala High Court in O. Parmasivan v. State of Kerala 1971 Taxation Law Reports 1241. These three decisions proceed on an erroneous interpretation of section 8 (3) (b) and must be deemed to be over ruled by the present decision.7. | 0[ds]We will presently set out that section but before we do so, it is necessary to refer to some other provisions of the Central Act as well, for it is a well-settled rule of interpretation that no one section should be construed in isolation but that the statute should be read as a whole with each part throwing light on the meaning of the other. Section 6 is the charging section and it levies Sales Tax on every dealer "on all sales effected by him in the course of inter state trade or commerce during anyCourt must construe the language of section 8 (3) (b) according to its plain words and it cannot write in the section words which are not there. To read the words "by him" after the words "for sale" in section 8 (3) (b) would not be construction but judicial paraphrase which is impermissible to the Court. It is also important to note that the word use is followed by the words "by him" clearly indicating that the use of the goods purchased in the manufacture of goods for sale must be by the registered dealer himself but these words are significantly absent after the words "for sale", On a plain grammatical construction, these words govern and qualify only "use" and cannot be projected in to the words "for sale". The goods purchased by the registered dealer must be used by him in the manufacture of goods which are intended for sale but such sale need not be by the registered dealer himself: it may be by any one.Now ordinarily when the language of a statutory provision is plain and unambiguous, there is no need to resort to the object and purpose of the enactment because in such a case, the language best dealers the intention of the law-giver. But, even if we look at the object and intendment of section 8 (1) (b), read with section 8(3) (b), we reach the same conclusion. The object of providing a lower rate of tax under 8 (1) (b) for sales of goods described in section 8 (3) (b) clearly is that when goods are purchased by a registered dealer for being used by him in the manufacture or processing of goods which are intended for sale, the goods which are ultimately sold should not become unduly expensive to the consumer by addition of a high rate of sales tax on the purchase of goods which are used in the manufacture or processing of the goods ultimately sold. Now if this be the object of section 8 (1) (b) read with section 8 (3) (b) it should be immaterial whether the sale of the manufactured or processed goods is by the registered dealer manufacturing or processing goods or by another person for whom the goods are manufactured or processed by the registered dealer. The intendment of the statutory provision being that the cost of the manufactured or processed goods to the consumer should not be unduly enhanced by reason of higher rate of tax on the goods used in the manufactured or processing of the goods sold, it is obvious that if this intendment is to be ful ly effectuated, the benefit of the statutory provision should be available irrespective of whether the manufactured or processed goods are sold to the consumer by the registered dealer or by some one else who has got the same manufactured by the registered dealer. It was for this reason that the legislature deliberately omitted to add the words "by him" after the words "for sale" so as to make it clear that this sub clause of section 8 (3) (b) would apply even if the goods manufactured or processed by the registered dealer were intended for sale by some one else. The words "for sale" following upon the word goods clearly indicate that the goods manufactured or processed by the registered dealer must be goods for sa le or in other words, they must be goods intended for sale and it is immaterial whether they are intended for sale by the registered dealer himself or by anyone else. This sub clause of section 8 (3) (b) would therefore clearly cover a case where a registered dealer manufactures or processes goods for a third party on a job contract and uses in the manufacture or processing of such goods, materials purchased by him against his Certificate of Registration and the declarations in Form C, so long as the manufactured or processed goods are intended for sale by such third party. It is of course, true that if proceedings are taken against the registered dealer under section 10 clause (d) or section 10A, the question would arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the Court or the competent Authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place on the language of section 8 (3) (b) the only construction which it can reasonably bear.We are therefore of the view that the Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job contract basis, its case would be covered by the terms of the second sub- clause of section 8 (3) (b), provided that the textiles so sized, bleached and dyed by the assessee were intended for sale by such third party. If it is proved in any proceedings initiated under section 10 (d) or section 10A that the textiles sized, bleached or dyed by the assessee for a third party on job contract basis were not intended for sale by such third party, as would be evident if s uch textiles were in fact not sold by the third party but were used for its own purposes, the assessee would incur the penalty prescribed in thoseit is a well settled rule of interpretation that a statute must be construed according to its plain language and neither should anything be added nor substracted unless there are adequate grounds to justify the inference that the legislature clearly so intended. It was said more than seven decades ago by Lord Mersey inThompson v. Goold and Company [1910] A.C.is a strong thing to read into an Act of Parliament words which are not there and in the absence of clear necessity, it is a wrong thing to do.Now here we find that the expression used by the legislature as also the rule making authority is simpliciter "forof goods for sale" without any addition of words indicating that the sale must be by any particular individual. The legislature has designedly abstained from using any words of limitation indicating that the sale should be b y the registered dealer manufacturing goods. It is significant to note that where the legislature wanted to restrict the sale to one by the registered dealer himself, the legislature used the qualifying words "by him" after the words "for resale" in the firstof section 8 (3) (b) indicating clearly that the resale contemplated by that provision is resale by the registered dealer purchasing the goods and by no one else, but while enacting the second subclause of section 8 (3) (b) the legislature did not qualify the words "for sale" by adding the words "by him". This deliberate omission of the words "by him" after the words "for sale" clearly indicates that the legislature did not intend that the sale of the manufactured goods should be restricted to the registered dealer manufacturing the goods. If the legislature intended that the sale of the manufactured goods should be by the registered dealer manufacturing the goods and by no one else, there is no reason why the words "by him should have been omitted after the words "for sale" when the legislature considered it necessary to introduce those words after the words "for resale" in the firstof section 8 (3) ( b). The omission of the words "by him" is clearly deliberate and intentional and it cannot be explained away on any reasonable hypothesis except that the legislature did not intend that the sale should be limited to that by the registered dealer manufacturing the goods. TheCourt must construe the language of section 8 (3) (b) according to its plain words and it cannot write in the section words which are not there. To read the words "by him" after the words "for sale" in section 8 (3) (b) would not be construction but judicial paraphrase which is impermissible to the Court. It is also important to note that the word use is followed by the words "by him" clearly indicating that the use of the goods purchased in the manufacture of goods for sale must be by the registered dealer himself but these words are significantly absent after the words "for sale", On a plain grammatical construction, these words govern and qualify only "use" and cannot be projected in to the words "for sale". The goods purchased by the registered dealer must be used by him in the manufacture of goods which are intended for sale but such sale need not be by the registered dealer himself: it may be by any one.Now ordinarily when the language of a statutory provision is plain and unambiguous, there is no need to resort to the object and purpose of the enactment because in such a case, the language best dealers the intention of theBut, even if we look at the object and intendment of section 8 (1) (b), read with section 8(3) (b), we reach the same conclusion. The object of providing a lower rate of tax under 8 (1) (b) for sales of goods described in section 8 (3) (b) clearly is that when goods are purchased by a registered dealer for being used by him in the manufacture or processing of goods which are intended for sale, the goods which are ultimately sold should not become unduly expensive to the consumer by addition of a high rate of sales tax on the purchase of goods which are used in the manufacture or processing of the goods ultimately sold. Now if this be the object of section 8 (1) (b) read with section 8 (3) (b) it should be immaterial whether the sale of the manufactured or processed goods is by the registered dealer manufacturing or processing goods or by another person for whom the goods are manufactured or processed by the registered dealer. The intendment of the statutory provision being that the cost of the manufactured or processed goods to the consumer should not be unduly enhanced by reason of higher rate of tax on the goods used in the manufactured or processing of the goods sold, it is obvious that if this intendment is to be ful ly effectuated, the benefit of the statutory provision should be available irrespective of whether the manufactured or processed goods are sold to the consumer by the registered dealer or by some one else who has got the same manufactured by the registered dealer. It was for this reason that the legislature deliberately omitted to add the words "by him" after the words "for sale" so as to make it clear that this sub clause of section 8 (3) (b) would apply even if the goods manufactured or processed by the registered dealer were intended for sale by some one else. The words "for sale" following upon the word goods clearly indicate that the goods manufactured or processed by the registered dealer must be goods for sa le or in other words, they must be goods intended for sale and it is immaterial whether they are intended for sale by the registered dealer himself or by anyone else. This sub clause of section 8 (3) (b) would therefore clearly cover a case where a registered dealer manufactures or processes goods for a third party on a job contract and uses in the manufacture or processing of such goods, materials purchased by him against his Certificate of Registration and the declarations in Form C, so long as the manufactured or processed goods are intended for sale by such third party. It is of course, true that if proceedings are taken against the registered dealer under section 10 clause (d) or section 10A, the question would arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the Court or the competent Authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place on the language of section 8 (3) (b) the only construction which it can reasonably bear.We are therefore of the view that the Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job contract basis, its case would be covered by the terms of the second subsections.6. We find that there are three decisions of three different High Court which have taken a view different from the one taken by us. One is the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax v. S. R. Sharma 31 Sales Tax Cases, 480 , the other is the decision of the Gujarat High Court in Navsari Cotton Mills Limited v. State of Gujarat 37 Sales Tax Cases 104 and the third is the decision of the Kerala High Court in O. Parmasivan v. State of Kerala 1971 Taxation Law Reports 1241. These three decisions proceed on an erroneous interpretation of section 8 (3) (b) and must be deemed to be over ruled by the present decision. | 0 | 4,782 | 2,640 | ### 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:
also important to note that the word use is followed by the words "by him" clearly indicating that the use of the goods purchased in the manufacture of goods for sale must be by the registered dealer himself but these words are significantly absent after the words "for sale", On a plain grammatical construction, these words govern and qualify only "use" and cannot be projected in to the words "for sale". The goods purchased by the registered dealer must be used by him in the manufacture of goods which are intended for sale but such sale need not be by the registered dealer himself: it may be by any one.Now ordinarily when the language of a statutory provision is plain and unambiguous, there is no need to resort to the object and purpose of the enactment because in such a case, the language best dealers the intention of the law-giver. But, even if we look at the object and intendment of section 8 (1) (b), read with section 8(3) (b), we reach the same conclusion. The object of providing a lower rate of tax under 8 (1) (b) for sales of goods described in section 8 (3) (b) clearly is that when goods are purchased by a registered dealer for being used by him in the manufacture or processing of goods which are intended for sale, the goods which are ultimately sold should not become unduly expensive to the consumer by addition of a high rate of sales tax on the purchase of goods which are used in the manufacture or processing of the goods ultimately sold. Now if this be the object of section 8 (1) (b) read with section 8 (3) (b) it should be immaterial whether the sale of the manufactured or processed goods is by the registered dealer manufacturing or processing goods or by another person for whom the goods are manufactured or processed by the registered dealer. The intendment of the statutory provision being that the cost of the manufactured or processed goods to the consumer should not be unduly enhanced by reason of higher rate of tax on the goods used in the manufactured or processing of the goods sold, it is obvious that if this intendment is to be ful ly effectuated, the benefit of the statutory provision should be available irrespective of whether the manufactured or processed goods are sold to the consumer by the registered dealer or by some one else who has got the same manufactured by the registered dealer. It was for this reason that the legislature deliberately omitted to add the words "by him" after the words "for sale" so as to make it clear that this sub clause of section 8 (3) (b) would apply even if the goods manufactured or processed by the registered dealer were intended for sale by some one else. The words "for sale" following upon the word goods clearly indicate that the goods manufactured or processed by the registered dealer must be goods for sa le or in other words, they must be goods intended for sale and it is immaterial whether they are intended for sale by the registered dealer himself or by anyone else. This sub clause of section 8 (3) (b) would therefore clearly cover a case where a registered dealer manufactures or processes goods for a third party on a job contract and uses in the manufacture or processing of such goods, materials purchased by him against his Certificate of Registration and the declarations in Form C, so long as the manufactured or processed goods are intended for sale by such third party. It is of course, true that if proceedings are taken against the registered dealer under section 10 clause (d) or section 10A, the question would arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the Court or the competent Authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place on the language of section 8 (3) (b) the only construction which it can reasonably bear.We are therefore of the view that the Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job contract basis, its case would be covered by the terms of the second sub- clause of section 8 (3) (b), provided that the textiles so sized, bleached and dyed by the assessee were intended for sale by such third party. If it is proved in any proceedings initiated under section 10 (d) or section 10A that the textiles sized, bleached or dyed by the assessee for a third party on job contract basis were not intended for sale by such third party, as would be evident if s uch textiles were in fact not sold by the third party but were used for its own purposes, the assessee would incur the penalty prescribed in those sections.6. We find that there are three decisions of three different High Court which have taken a view different from the one taken by us. One is the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax v. S. R. Sharma 31 Sales Tax Cases, 480 , the other is the decision of the Gujarat High Court in Navsari Cotton Mills Limited v. State of Gujarat 37 Sales Tax Cases 104 and the third is the decision of the Kerala High Court in O. Parmasivan v. State of Kerala 1971 Taxation Law Reports 1241. These three decisions proceed on an erroneous interpretation of section 8 (3) (b) and must be deemed to be over ruled by the present decision.7.
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( b). The omission of the words "by him" is clearly deliberate and intentional and it cannot be explained away on any reasonable hypothesis except that the legislature did not intend that the sale should be limited to that by the registered dealer manufacturing the goods. TheCourt must construe the language of section 8 (3) (b) according to its plain words and it cannot write in the section words which are not there. To read the words "by him" after the words "for sale" in section 8 (3) (b) would not be construction but judicial paraphrase which is impermissible to the Court. It is also important to note that the word use is followed by the words "by him" clearly indicating that the use of the goods purchased in the manufacture of goods for sale must be by the registered dealer himself but these words are significantly absent after the words "for sale", On a plain grammatical construction, these words govern and qualify only "use" and cannot be projected in to the words "for sale". The goods purchased by the registered dealer must be used by him in the manufacture of goods which are intended for sale but such sale need not be by the registered dealer himself: it may be by any one.Now ordinarily when the language of a statutory provision is plain and unambiguous, there is no need to resort to the object and purpose of the enactment because in such a case, the language best dealers the intention of theBut, even if we look at the object and intendment of section 8 (1) (b), read with section 8(3) (b), we reach the same conclusion. The object of providing a lower rate of tax under 8 (1) (b) for sales of goods described in section 8 (3) (b) clearly is that when goods are purchased by a registered dealer for being used by him in the manufacture or processing of goods which are intended for sale, the goods which are ultimately sold should not become unduly expensive to the consumer by addition of a high rate of sales tax on the purchase of goods which are used in the manufacture or processing of the goods ultimately sold. Now if this be the object of section 8 (1) (b) read with section 8 (3) (b) it should be immaterial whether the sale of the manufactured or processed goods is by the registered dealer manufacturing or processing goods or by another person for whom the goods are manufactured or processed by the registered dealer. The intendment of the statutory provision being that the cost of the manufactured or processed goods to the consumer should not be unduly enhanced by reason of higher rate of tax on the goods used in the manufactured or processing of the goods sold, it is obvious that if this intendment is to be ful ly effectuated, the benefit of the statutory provision should be available irrespective of whether the manufactured or processed goods are sold to the consumer by the registered dealer or by some one else who has got the same manufactured by the registered dealer. It was for this reason that the legislature deliberately omitted to add the words "by him" after the words "for sale" so as to make it clear that this sub clause of section 8 (3) (b) would apply even if the goods manufactured or processed by the registered dealer were intended for sale by some one else. The words "for sale" following upon the word goods clearly indicate that the goods manufactured or processed by the registered dealer must be goods for sa le or in other words, they must be goods intended for sale and it is immaterial whether they are intended for sale by the registered dealer himself or by anyone else. This sub clause of section 8 (3) (b) would therefore clearly cover a case where a registered dealer manufactures or processes goods for a third party on a job contract and uses in the manufacture or processing of such goods, materials purchased by him against his Certificate of Registration and the declarations in Form C, so long as the manufactured or processed goods are intended for sale by such third party. It is of course, true that if proceedings are taken against the registered dealer under section 10 clause (d) or section 10A, the question would arise whether the goods manufactured or processed by the registered dealer for a third party were intended for sale by such third party and that would have to be decided by the Court or the competent Authority according to the appropriate and relevant rules of evidence, but merely because some difficulty may arise in the determination of this question by reason of the third party coming into the picture that would be no ground for refusing to place on the language of section 8 (3) (b) the only construction which it can reasonably bear.We are therefore of the view that the Division Bench of the High Court was right in holding that even if the assessee carried out the work of sizing, bleaching and dyeing of textiles for a third party on job contract basis, its case would be covered by the terms of the second subsections.6. We find that there are three decisions of three different High Court which have taken a view different from the one taken by us. One is the decision of the Madhya Pradesh High Court in Commissioner of Sales Tax v. S. R. Sharma 31 Sales Tax Cases, 480 , the other is the decision of the Gujarat High Court in Navsari Cotton Mills Limited v. State of Gujarat 37 Sales Tax Cases 104 and the third is the decision of the Kerala High Court in O. Parmasivan v. State of Kerala 1971 Taxation Law Reports 1241. These three decisions proceed on an erroneous interpretation of section 8 (3) (b) and must be deemed to be over ruled by the present decision.
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Bharti AXA General Insurance Co. Ltd Vs. Priya Paul & Anr | such licence was held by the Pemberton Soaring Centre. We are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage. 11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO). 11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public.(Glossary of Terms adopted by the International Civil Aviation Organisation, available at https://www.icao.int/dataplus_archive/Documents/20130729/GLOSSARY. doc.). 11.4 In contrast, non-scheduled services are described as commercial air transport services performed as other than a scheduled service.(International Civil Aviation Organisation, The Manual on the Regulation of International Air Transport (Doc. 9626, 3rd edition, 2016).) In the Manual on the Regulation of International Air Transport, the ICAO defines a chartered flight as a non-scheduled operation using a chartered aircraft. At the same time, a charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft. Importantly, reference is made to the single-entity charter or own use charter, which is described in the following terms: …the most basic and timeless type, the single entity charter or own-use charter, one chartered by one entity (e.g. an individual, corporation, government) solely for its own use for the carriage of passengers and/or freight, with the cost borne solely by that entity and not shared directly or indirectly by others. (emphasis added) 11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the Policy. 12. The last issue to be determined is whether the deceased was a fare-paying passenger on the glider in question. We find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger. 12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question. 13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1. | 0[ds]7. There is no dispute that the deceased was engaging in the activity of gliding, which is an aviation/aerial activity which would fall within the exclusion envisaged under Clauses 7(ix)(iii) and 7(xiv) of the Policy. The impugned judgment would be liable to be confirmed if we determine that the gliding activity in question falls within the exemptions to the exclusions envisaged under these two clauses, that is to say, the deceased was travelling in a duly licensed standard type of aircraft, bringing him out of the exclusion in Clause 7(ix)(iii), and that he was travelling as a fare-paying passenger in an air charter company or regular scheduled airline, bringing him out of the scope of the exclusion in Clause 7(xiv). Both these clauses must be satisfied in order to evade exclusion from the Policy8.5 It becomes important to note at this juncture that though the glider in question was equipped with an engine, this was mainly for the purpose of adding self-launching capacity to the vehicle, as evident from the TSBC Report. Be that as it may, the fact that the glider was motorised would not imply that it was not an aircraft at all. Even the TSBC Report unequivocally refers to the glider as an aircraft repeatedly. Importantly, the terms aircraft and glider have not been defined within the Policy. In such circumstances, we are of the view that the glider in question must be regarded as an aircraft under the PolicyWe begin by noting that the Policy itself does not define what a standard type of aircraft is, and we are at a loss to understand the context in which the term has been employed in the Policy. Much of the argument advanced by the learned Counsel for the Appellant to distinguish between power-driven and non-power driven aircraft as being standard and non-standard relies upon common parlance; however, apart from this submission, learned Counsel has not been able to explain the exact meaning of the term standard type of aircraft9.1 The nature of conventional gliders as not being powerdriven has not been seriously disputed before us. Thus, we find it unnecessary to refer to the extensive literature relied upon by the Appellant to establish the mechanics of a gliders flight9.6 Thus, it is clear that no uniform requirement of flying experience is prescribed for one set of aircraft as opposed to another; on the other hand, different requirements are prescribed for different types of aircraft9.7 Interestingly, there is a distinction maintained under Rule 48 between the fees payable for student pilots licences and glider licences on one hand and remaining licences on the other, for the purpose of issuance, validation or renewal of licences. It is also relevant to note that a common student licence is envisaged for aeroplanes, helicopters and gliders, while separate student licences are prescribed for microlight aircraft and balloons9.8 In our considered opinion, the above scheme shows that the 1937 Rules do not maintain any uniform categorisation between powered and non-powered aircraft, far from terming any of these as standard or non-standard. It does not appear to be the case that one set of rules is prescribed for powered aircraft, and another distinct set for non-powered aircraft. Thus, no reliance can be placed on the Rules to further the Appellants contention in this respect9.9 As far as the Canadian regime is concerned, no particular statutory provision was brought to our attention in this regard by either party. We may observe that the TSBC Report notes that the pilot of the glider had a private pilot licence for aeroplanes, valid for single-engine land aircraft, as well as a separate glider pilot licence. However, this distinction per se does not support the argument of the Appellant, since a brief perusal of the Canadian Aviation Regulations (SOR/96-433) reveals that under the Canadian regime as well, a distinction of the nature submitted by the Appellant has not been maintained. To take the licence regime as an example again, the regulations provide for several kinds of licences, which do not seem to be categorised on the basis of the powered or non-powered nature of the aircraft. For instance, the regulations provide for airline transport licences, commercial licences, and private pilot licences for aeroplanes; airline transport licences, commercial licences, and private pilot licences for helicopters; glider pilot licences; and pilot permits for gyroplanes, ultra-light aeroplanes, and so on9.10 From the above discussion, it is evident that no rigid distinction can be culled out between standard and nonstandard aircraft. Though the Appellant in this case submits that this distinction can be drawn on the basis of whether the aircraft is power-driven or not, it can equally be argued that the term standard aircraft connotes only aeroplanes, or only aeroplanes and helicopters, or even includes microlight aircraft, and so on. The usage of as vague a phrase as standard type of aircraft in the Policy, thus, suggests to us that the same must be construed in a liberal manner so as to benefit the insured9.11 In the instant case, we agree with the conclusion of the National Commission that had the insurer really intended to exclude gliding activity from the purview of the Policy, it could have done so expressly, similar to the manner in which hanggliding and para-gliding were excluded in Clause 7(xiii) of the Policy. Similarly, the insurer could have also defined the phrase standard type of aircraft for the purpose of the Policy, but it chose not to do so. In these circumstances, it is not open to the insurer to reject a claim arising out of a glider accident by now arguing that a glider is not a standard aircraft by virtue of not principally being a powered aircraft. We are therefore compelled to conclude that regardless of whether the glider involved in the accident was powered or non-powered, motorised or nonmotorised, it was a standard type of aircraft envisioned in the PolicyIn this regard, it may be noted that the National Commission specifically took note of the Appellants submission that the licence produced before the Commission was only a municipal business licence to be taken necessarily by any business-owner seeking to conduct a business in the municipal limits of Pemberton. The Commission went on to find that there was no evidence of a licence being required in respect of each aircraft/glider, and the private registration undertaken with respect to the glider in question, in addition to the municipal business licence, was sufficient compliance with the requirement of the aircraft being duly licensed10.1 We find ourselves in agreement with the National Commission in this regard. We have perused the business licence on record, as well as the observation in the TSBC Report that the the glider was registered privately, carrying registration as CFHAB, with serial number 11-016. We are moreover conscious of the specific finding in the TSBC Report that the glider was certified, equipped and maintained in accordance with existing regulations and approved procedures, and compliant with rules such as the Visual Flight Rules. The Report further observes that even the pilot of the glider was certified and qualified for the flight as per existing regulations, indicating that such separate glider pilot licence was in accordance with the legal requirements. Thus, we conclude that it was rightly held that the aircraft in question was duly licensedWe are of the view that the National Commission rightly disregarded this communication, though spoken to by the Managing Director of Diligence on affidavit, being hearsay evidence in nature. No affidavit from Mr. Taylor himself was placed on record, and indeed, there is nothing to show that he in fact was the attorney of Ms. Rozsypalek. Thus, no reliance can be placed on the alleged communication with Mr. TaylorWe are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO)11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the PolicyWe find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1. | 0 | 6,611 | 2,295 | ### Instruction:
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such licence was held by the Pemberton Soaring Centre. We are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage. 11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO). 11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public.(Glossary of Terms adopted by the International Civil Aviation Organisation, available at https://www.icao.int/dataplus_archive/Documents/20130729/GLOSSARY. doc.). 11.4 In contrast, non-scheduled services are described as commercial air transport services performed as other than a scheduled service.(International Civil Aviation Organisation, The Manual on the Regulation of International Air Transport (Doc. 9626, 3rd edition, 2016).) In the Manual on the Regulation of International Air Transport, the ICAO defines a chartered flight as a non-scheduled operation using a chartered aircraft. At the same time, a charter is stated to be a contractual arrangement between an air carrier and an entity hiring or leasing its aircraft. Importantly, reference is made to the single-entity charter or own use charter, which is described in the following terms: …the most basic and timeless type, the single entity charter or own-use charter, one chartered by one entity (e.g. an individual, corporation, government) solely for its own use for the carriage of passengers and/or freight, with the cost borne solely by that entity and not shared directly or indirectly by others. (emphasis added) 11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the Policy. 12. The last issue to be determined is whether the deceased was a fare-paying passenger on the glider in question. We find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger. 12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question. 13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1.
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aircraft being duly licensed10.1 We find ourselves in agreement with the National Commission in this regard. We have perused the business licence on record, as well as the observation in the TSBC Report that the the glider was registered privately, carrying registration as CFHAB, with serial number 11-016. We are moreover conscious of the specific finding in the TSBC Report that the glider was certified, equipped and maintained in accordance with existing regulations and approved procedures, and compliant with rules such as the Visual Flight Rules. The Report further observes that even the pilot of the glider was certified and qualified for the flight as per existing regulations, indicating that such separate glider pilot licence was in accordance with the legal requirements. Thus, we conclude that it was rightly held that the aircraft in question was duly licensedWe are of the view that the National Commission rightly disregarded this communication, though spoken to by the Managing Director of Diligence on affidavit, being hearsay evidence in nature. No affidavit from Mr. Taylor himself was placed on record, and indeed, there is nothing to show that he in fact was the attorney of Ms. Rozsypalek. Thus, no reliance can be placed on the alleged communication with Mr. TaylorWe are inclined to disregard these records, as the investigation based on which such records were collected was commissioned by the insurer after the impugned decision of the National Commission dated 22.05.2017, and more so after Diligence had already submitted an investigation report prior thereto. As per the second report itself, the first report was submitted on 03.02.2014, and the Appellant instructed Diligence to re-open investigation into the case on 20.02.2018, four years later, specifically on the question of whether the Pemberton Soaring Centre was an air charter company or regular scheduled airline. In our considered opinion, the information that the Appellant now seeks to rely upon could easily have been obtained by it at the time of the first investigation by Diligence, and could have been placed before the National Commission. Particularly in view of the long lapse of time before the second report was commissioned, we are of the opinion that it is not open to the Appellant to place reliance upon the same at this stage11.2 We are cognizant of the fact that the term air charter company has not been defined within the policy, and the National Commission, while concluding that the Pemberton Soaring Centre was an air charter company, relied upon the dictionary meaning of the word charter, which connotes the hiring or lease of the entirety of a vessel. It appears that such term is not defined within any Canadian or Indian regulation, and indeed, no material has been placed on record regarding the regulatory regime governing domestic chartered flights in India, Canada, or any other jurisdiction. However, to throw light on the scope of air charter services, we may refer to international materials discussing the same, referring in particular to the definitions adopted by the International Civil Aviation Organisation (the ICAO)11.3 Any discussion on charter flights must first begin by differentiating between scheduled and non-scheduled flights. The ICAO essentially defines scheduled flights as those which are scheduled and performed as per a fixed timetable, or are so regular and frequent so as to constitute a recognizably systematic series, and are open to direct bookings by members of the public11.5 It is undisputed in the instant case that the glider in question could seat only two persons. Thus, in offering sightseeing services on a glider plane for a fixed consideration, the Pemberton Soaring Centre gave out the entirety of the aircraft on hire for the duration of the aerial journey, though one seat was reserved for the pilot. In our considered opinion, this practice may constitute an own-use charter. Moreover, we note that there is no dispute that the Pemberton Soaring Centre was an incorporated company. Keeping in mind that the Appellant has itself omitted to define what it means by an air charter company in the Policy, we are again, for the purposes of the Policy, inclined to extend the benefit of the ambiguity in the meaning of the term to the claimant. Thus, we affirm the National Commissions finding that the Pemberton Soaring Centre was an air charter company within the meaning of clause 7(xiv) of the PolicyWe find no force in the Appellants contention that the deceased was not a passenger merely because the journey was supposed to begin and terminate at the same location; indeed, this contention was duly dealt with and rejected by the National Commission. Needless to say, the purpose of the journey was to fly over various scenic spots, and after completion, the glider was to return to a designated location, presumably from where it took off. As noted by the National Commission, this would not be dissimilar to how a sightseeing bus might originate and terminate its journey at the same spot after passing by various places of interest. We find it difficult to conclude that a person undertaking such a journey would not amount to a passenger12.1 Further, it is evident from the record that the journey on the glider was undertaken for a fixed consideration, though the ticket for the same has not been placed on record. Thus, we affirm the National Commissions finding that the deceased was a fare- paying passenger on the glider in question13. In view of the above discussion, we find that the accident out of which the instant claim arose was completely covered under the ambit of the Policy, since the deceased was travelling in a duly licensed standard type of aircraft, which brings him out of the exclusion in Clause 7(ix)(iii), and was travelling as a fare-paying passenger in a flight of an air charter company, bringing him out of the scope of the exclusion in Clause 7(xiv). Thus, we find no reason to interfere with the impugned judgment, which found that the Appellant wrongly repudiated the claim filed by Respondent No. 1.
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Balli Petrochemicals Limited Vs. National Aluminum Company Ltd | 30 days of receipt of the notice of the seller a panel of three names of persons. It will also be evident from the said arbitration clause that the contractor shall on receipt of the names, as referred, select any one of the persons named to be appointed as a sole Arbitrator and communicate his name to the appointing authority who shall thereupon appoint the said person as sole Arbitrator. This clause further provides that if the seller fails to communicate such selection, as noted above, within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. An over all look of the aforesaid provision of the arbitration clause makes it clear that the appointing authority for appointment of an Arbitrator under the arbitration clause is the Chief Managing Director of the respondent who shall send a notice to the petitioner within 30 days of receipt of a panel of three names. It would be obligatory on the part of the petitioner to select any one of the persons named by the appointing authority to be appointed as the sole Arbitrator and communicate his name to the appointing authority and thereupon the appointing authority shall appoint the said person as the sole Arbitrator. If the seller fails to communicate such selection as provided above within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. On the resignation of the sole Arbitrator, namely, Hon.Mr.Justice R.S.Pathak, (since deceased) in terms of the aforesaid clause, a list of three names were admittedly served upon the petitioner out of which one was to be selected for appointment in replacement of Hon.Mr.Justice R.S. Pathak, (since deceased). It is not in dispute that the said notice was duly served on the petitioner, but in spite of such service of notice, the petitioner had failed to appoint or select any one of the persons named in the panel of three persons from the list sent by the respondent within the time specified therein. Since the arbitration clause clearly provides for selection of one of the persons named in the panel to be appointed as the sole Arbitrator by the respondents, it was open for the respondent to select one persons named from the panel and appoint as the sole Arbitrator. In this case admittedly the respondent has already appointed and selected a retired Judge of the Delhi High Court as the sole Arbitrator to replace Justice R.S.Pathak (since deceased). After such appointment having been made, the petitioner has filed this application saying that since the former Chief Justice of India was appointed as the sole Arbitrator, it would not be possible for the petitioner to accept a retired Judge of the Delhi High Court for being appointed as the sole Arbitrator. As noted herein above, it is not in dispute that a panel of three persons in compliance with the arbitration clause was sent by the respondent which was duly received by the petitioner. In spite of receipt of the said notice to select any one of the persons named in the panel and the petitioner having failed to select or choose any one of them and had started saying that as a former Chief Justice of India was appointed to arbitrate the disputes between the parties, the question of accepting a retired Judge of the High Court as the sole Arbitrator in replacement of a former Chief Justice of India was not acceptable to the petitioner. We are unable to accept the submissions made by Mr. Ganguly, learned senior counsel appearing on behalf of the petitioner and after going through the arbitration clause in depth and in detail, in my view, it was open to the respondent to select any one from the panel sent by the respondent after the expiry of the period for selecting a person by the petitioner. In this case, since the respondent has already exercised the arbitration clause and already replaced and selected a sole arbitrator in place of Justice R.S. Pathak (since deceased) who has already entered appearance, I do not find any reason to replace the appointed arbitrator at this stage when admittedly no allegations have been put forward by the petitioner against such appointment excepting that since a former Chief Justice of India was appointed to arbitrate the disputes between the parties, this time also a former Chief Justice of India ought to have been appointed. As noted herein earlier, a plain reading of the arbitration clause would clearly show that it was solely on the respondent to select the person from the panel of three persons in the event the petitioner had failed to select any one of the persons named by the respondent. In view of the aforesaid admitted fact and in view of the fact that the arbitration clause was very clear, it would not be necessary for me to go into the details in this matter as I find that the appointment was already made and it is only a case of replacement of earlier sole arbitrator on the ground of his resignation. Therefore, the objections raised by Mr. Ganguly, learned senior counsel appearing for the petitioner cannot be sustained at this stage particularly when the petitioner has not raised any objection on the creditability of the sole arbitrator now appointed by the respondent. 4. It is to be kept on record that although comprehensive submissions were filed by both the parties before me, but in view of the admitted fact, as stated hereinabove and on a plain reading of the arbitration clause itself I do not find any justification to deal with the submissions put forward by the parties. I, however, request the sole arbitrator to start with the arbitration at an early date and it is expected that he will pass the award in accordance with law within six months from the date of supply of a copy of this order to him.5. | 1[ds]At this juncture, we may examine the arbitration clause which is enumerated in clause 16 of the tender, as noted herein before. From a plain reading of the arbitration clause, it is evident that for the purpose of appointing the sole Arbitrator, the Chief Managing Director of the respondent, i.e. NALCO who shall be the appointing authority will send within 30 days of receipt of the notice of the seller a panel of three names of persons. It will also be evident from the said arbitration clause that the contractor shall on receipt of the names, as referred, select any one of the persons named to be appointed as a sole Arbitrator and communicate his name to the appointing authority who shall thereupon appoint the said person as sole Arbitrator. This clause further provides that if the seller fails to communicate such selection, as noted above, within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. An over all look of the aforesaid provision of the arbitration clause makes it clear that the appointing authority for appointment of an Arbitrator under the arbitration clause is the Chief Managing Director of the respondent who shall send a notice to the petitioner within 30 days of receipt of a panel of three names. It would be obligatory on the part of the petitioner to select any one of the persons named by the appointing authority to be appointed as the sole Arbitrator and communicate his name to the appointing authority and thereupon the appointing authority shall appoint the said person as the sole Arbitrator. If the seller fails to communicate such selection as provided above within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. On the resignation of the sole Arbitrator, namely, Hon.Mr.Justice R.S.Pathak, (since deceased) in terms of the aforesaid clause, a list of three names were admittedly served upon the petitioner out of which one was to be selected for appointment in replacement of Hon.Mr.Justice R.S. Pathak, (since deceased). It is not in dispute that the said notice was duly served on the petitioner, but in spite of such service of notice, the petitioner had failed to appoint or select any one of the persons named in the panel of three persons from the list sent by the respondent within the time specified therein. Since the arbitration clause clearly provides for selection of one of the persons named in the panel to be appointed as the sole Arbitrator by the respondents, it was open for the respondent to select one persons named from the panel and appoint as the sole Arbitrator. In this case admittedly the respondent has already appointed and selected a retired Judge of the Delhi High Court as the sole Arbitrator to replace Justice R.S.Pathak (since deceased). After such appointment having been made, the petitioner has filed this application saying that since the former Chief Justice of India was appointed as the sole Arbitrator, it would not be possible for the petitioner to accept a retired Judge of the Delhi High Court for being appointed as the sole Arbitrator. As noted herein above, it is not in dispute that a panel of three persons in compliance with the arbitration clause was sent by the respondent which was duly received by the petitioner. In spite of receipt of the said notice to select any one of the persons named in the panel and the petitioner having failed to select or choose any one of them and had started saying that as a former Chief Justice of India was appointed to arbitrate the disputes between the parties, the question of accepting a retired Judge of the High Court as the sole Arbitrator in replacement of a former Chief Justice of India was not acceptable to the petitioner. We are unable to accept the submissions made by Mr. Ganguly, learned senior counsel appearing on behalf of the petitioner and after going through the arbitration clause in depth and in detail, in my view, it was open to the respondent to select any one from the panel sent by the respondent after the expiry of the period for selecting a person by the petitioner. In this case, since the respondent has already exercised the arbitration clause and already replaced and selected a sole arbitrator in place of Justice R.S. Pathak (since deceased) who has already entered appearance, I do not find any reason to replace the appointed arbitrator at this stage when admittedly no allegations have been put forward by the petitioner against such appointment excepting that since a former Chief Justice of India was appointed to arbitrate the disputes between the parties, this time also a former Chief Justice of India ought to have been appointed. As noted herein earlier, a plain reading of the arbitration clause would clearly show that it was solely on the respondent to select the person from the panel of three persons in the event the petitioner had failed to select any one of the persons named by the respondent. In view of the aforesaid admitted fact and in view of the fact that the arbitration clause was very clear, it would not be necessary for me to go into the details in this matter as I find that the appointment was already made and it is only a case of replacement of earlier sole arbitrator on the ground of his resignation. Therefore, the objections raised by Mr. Ganguly, learned senior counsel appearing for the petitioner cannot be sustained at this stage particularly when the petitioner has not raised any objection on the creditability of the sole arbitrator now appointed by the respondent.It is to be kept on record that although comprehensive submissions were filed by both the parties before me, but in view of the admitted fact, as stated hereinabove and on a plain reading of the arbitration clause itself I do not find any justification to deal with the submissions put forward by the parties. I, however, request the sole arbitrator to start with the arbitration at an early date and it is expected that he will pass the award in accordance with law within six months from the date of supply of a copy of this order to him. | 1 | 1,893 | 1,131 | ### Instruction:
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30 days of receipt of the notice of the seller a panel of three names of persons. It will also be evident from the said arbitration clause that the contractor shall on receipt of the names, as referred, select any one of the persons named to be appointed as a sole Arbitrator and communicate his name to the appointing authority who shall thereupon appoint the said person as sole Arbitrator. This clause further provides that if the seller fails to communicate such selection, as noted above, within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. An over all look of the aforesaid provision of the arbitration clause makes it clear that the appointing authority for appointment of an Arbitrator under the arbitration clause is the Chief Managing Director of the respondent who shall send a notice to the petitioner within 30 days of receipt of a panel of three names. It would be obligatory on the part of the petitioner to select any one of the persons named by the appointing authority to be appointed as the sole Arbitrator and communicate his name to the appointing authority and thereupon the appointing authority shall appoint the said person as the sole Arbitrator. If the seller fails to communicate such selection as provided above within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. On the resignation of the sole Arbitrator, namely, Hon.Mr.Justice R.S.Pathak, (since deceased) in terms of the aforesaid clause, a list of three names were admittedly served upon the petitioner out of which one was to be selected for appointment in replacement of Hon.Mr.Justice R.S. Pathak, (since deceased). It is not in dispute that the said notice was duly served on the petitioner, but in spite of such service of notice, the petitioner had failed to appoint or select any one of the persons named in the panel of three persons from the list sent by the respondent within the time specified therein. Since the arbitration clause clearly provides for selection of one of the persons named in the panel to be appointed as the sole Arbitrator by the respondents, it was open for the respondent to select one persons named from the panel and appoint as the sole Arbitrator. In this case admittedly the respondent has already appointed and selected a retired Judge of the Delhi High Court as the sole Arbitrator to replace Justice R.S.Pathak (since deceased). After such appointment having been made, the petitioner has filed this application saying that since the former Chief Justice of India was appointed as the sole Arbitrator, it would not be possible for the petitioner to accept a retired Judge of the Delhi High Court for being appointed as the sole Arbitrator. As noted herein above, it is not in dispute that a panel of three persons in compliance with the arbitration clause was sent by the respondent which was duly received by the petitioner. In spite of receipt of the said notice to select any one of the persons named in the panel and the petitioner having failed to select or choose any one of them and had started saying that as a former Chief Justice of India was appointed to arbitrate the disputes between the parties, the question of accepting a retired Judge of the High Court as the sole Arbitrator in replacement of a former Chief Justice of India was not acceptable to the petitioner. We are unable to accept the submissions made by Mr. Ganguly, learned senior counsel appearing on behalf of the petitioner and after going through the arbitration clause in depth and in detail, in my view, it was open to the respondent to select any one from the panel sent by the respondent after the expiry of the period for selecting a person by the petitioner. In this case, since the respondent has already exercised the arbitration clause and already replaced and selected a sole arbitrator in place of Justice R.S. Pathak (since deceased) who has already entered appearance, I do not find any reason to replace the appointed arbitrator at this stage when admittedly no allegations have been put forward by the petitioner against such appointment excepting that since a former Chief Justice of India was appointed to arbitrate the disputes between the parties, this time also a former Chief Justice of India ought to have been appointed. As noted herein earlier, a plain reading of the arbitration clause would clearly show that it was solely on the respondent to select the person from the panel of three persons in the event the petitioner had failed to select any one of the persons named by the respondent. In view of the aforesaid admitted fact and in view of the fact that the arbitration clause was very clear, it would not be necessary for me to go into the details in this matter as I find that the appointment was already made and it is only a case of replacement of earlier sole arbitrator on the ground of his resignation. Therefore, the objections raised by Mr. Ganguly, learned senior counsel appearing for the petitioner cannot be sustained at this stage particularly when the petitioner has not raised any objection on the creditability of the sole arbitrator now appointed by the respondent. 4. It is to be kept on record that although comprehensive submissions were filed by both the parties before me, but in view of the admitted fact, as stated hereinabove and on a plain reading of the arbitration clause itself I do not find any justification to deal with the submissions put forward by the parties. I, however, request the sole arbitrator to start with the arbitration at an early date and it is expected that he will pass the award in accordance with law within six months from the date of supply of a copy of this order to him.5.
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send within 30 days of receipt of the notice of the seller a panel of three names of persons. It will also be evident from the said arbitration clause that the contractor shall on receipt of the names, as referred, select any one of the persons named to be appointed as a sole Arbitrator and communicate his name to the appointing authority who shall thereupon appoint the said person as sole Arbitrator. This clause further provides that if the seller fails to communicate such selection, as noted above, within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. An over all look of the aforesaid provision of the arbitration clause makes it clear that the appointing authority for appointment of an Arbitrator under the arbitration clause is the Chief Managing Director of the respondent who shall send a notice to the petitioner within 30 days of receipt of a panel of three names. It would be obligatory on the part of the petitioner to select any one of the persons named by the appointing authority to be appointed as the sole Arbitrator and communicate his name to the appointing authority and thereupon the appointing authority shall appoint the said person as the sole Arbitrator. If the seller fails to communicate such selection as provided above within the period specified, the appointing authority shall make the selection and appoint the selected person as the sole Arbitrator. On the resignation of the sole Arbitrator, namely, Hon.Mr.Justice R.S.Pathak, (since deceased) in terms of the aforesaid clause, a list of three names were admittedly served upon the petitioner out of which one was to be selected for appointment in replacement of Hon.Mr.Justice R.S. Pathak, (since deceased). It is not in dispute that the said notice was duly served on the petitioner, but in spite of such service of notice, the petitioner had failed to appoint or select any one of the persons named in the panel of three persons from the list sent by the respondent within the time specified therein. Since the arbitration clause clearly provides for selection of one of the persons named in the panel to be appointed as the sole Arbitrator by the respondents, it was open for the respondent to select one persons named from the panel and appoint as the sole Arbitrator. In this case admittedly the respondent has already appointed and selected a retired Judge of the Delhi High Court as the sole Arbitrator to replace Justice R.S.Pathak (since deceased). After such appointment having been made, the petitioner has filed this application saying that since the former Chief Justice of India was appointed as the sole Arbitrator, it would not be possible for the petitioner to accept a retired Judge of the Delhi High Court for being appointed as the sole Arbitrator. As noted herein above, it is not in dispute that a panel of three persons in compliance with the arbitration clause was sent by the respondent which was duly received by the petitioner. In spite of receipt of the said notice to select any one of the persons named in the panel and the petitioner having failed to select or choose any one of them and had started saying that as a former Chief Justice of India was appointed to arbitrate the disputes between the parties, the question of accepting a retired Judge of the High Court as the sole Arbitrator in replacement of a former Chief Justice of India was not acceptable to the petitioner. We are unable to accept the submissions made by Mr. Ganguly, learned senior counsel appearing on behalf of the petitioner and after going through the arbitration clause in depth and in detail, in my view, it was open to the respondent to select any one from the panel sent by the respondent after the expiry of the period for selecting a person by the petitioner. In this case, since the respondent has already exercised the arbitration clause and already replaced and selected a sole arbitrator in place of Justice R.S. Pathak (since deceased) who has already entered appearance, I do not find any reason to replace the appointed arbitrator at this stage when admittedly no allegations have been put forward by the petitioner against such appointment excepting that since a former Chief Justice of India was appointed to arbitrate the disputes between the parties, this time also a former Chief Justice of India ought to have been appointed. As noted herein earlier, a plain reading of the arbitration clause would clearly show that it was solely on the respondent to select the person from the panel of three persons in the event the petitioner had failed to select any one of the persons named by the respondent. In view of the aforesaid admitted fact and in view of the fact that the arbitration clause was very clear, it would not be necessary for me to go into the details in this matter as I find that the appointment was already made and it is only a case of replacement of earlier sole arbitrator on the ground of his resignation. Therefore, the objections raised by Mr. Ganguly, learned senior counsel appearing for the petitioner cannot be sustained at this stage particularly when the petitioner has not raised any objection on the creditability of the sole arbitrator now appointed by the respondent.It is to be kept on record that although comprehensive submissions were filed by both the parties before me, but in view of the admitted fact, as stated hereinabove and on a plain reading of the arbitration clause itself I do not find any justification to deal with the submissions put forward by the parties. I, however, request the sole arbitrator to start with the arbitration at an early date and it is expected that he will pass the award in accordance with law within six months from the date of supply of a copy of this order to him.
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Durgi Devi & Ors Vs. State Of U.P | and (ii), comes to Rs. 77, 794/-. If this fig ure is divided by 2, the average annual income under clause (e) would come to Rs. 38, 897/-. The High Court rounded off and raised this figure to Rs. 40, 000/-. We do not want to disturb that approximation because the sale of a coupe of the forest for the year immediately following the vesting, showed that the appraised yield of the forest on the date of vesting could be around Rs. 50, 000/-.The last question that remains to be considered is, whether the High Court was right in holding that the Compensation Officer was not competent to deduct under clause (c) of Section 44, 15% from the estimated income of the forest, for management expenses. 12. Mr. Dikshit contends that the word "and" in clause (e) of Section 44 should be read dis- conjunctively so as to convey the sense of "or". If it is so construed proceeds the argument-15% for management cost has got to be deducted from the "gross assets" calculated under Section 39(1) from each of the sources indicated therein, including the income from forests assessed under clause (e) of that Section. 13. We are unable to accept this argument. 14. There is no warrant for reading "and" in clause (c) of Section 44 as "or". The Legislature appears to have advisedly used the expression "cost of management" in conjunction with the expression "irrecoverable arrears of rent". The former takes its colour from the latter in association with which it occurs. From the context, it appears that the expression "cost of management" is confined to the, cost of management in the collection of rents. 15. The scheme of Section 44 also supports this construction. Under the scheme of Section 44, a particular deduction is authorised with reference to income from a particular source. A comparative study of Sections 39(1) and 44 would show that there is no clause in the latter Section which specifically authorises deduction of 15% from the income referable to clause (e) of the former. To elaborate the point, deduction under clause (d) of Section 44 is relatable to income coming under clause (b) of Section 39. Sub-clause (iii) of clause (d) of Section 44 specifically imports and applies the deduction under the preceding clause (c), to the income from the land in the personal cultivation of the intermediary. Clause (e) of Section 44 specifically refers to clause (f) of Section 39 and makes the cost of collection of income from royalties deductible at such rates as may be prescribed. Again, the deduction under clause (g) of Section 44, has by specific reference, been made applicable to the income from the source under clause (g) of Section 39(1). Had Mr. Dikshits argument, that clause (c) of Section 44 contemplates an omnibus deduction which encompasses all the sources of income assessed under clauses (a) to (g) of Section 39(1) been correct, there was no necessity to specify the quantum and nature of deductions separately in clauses (e) and (f) of Sect ion 44 and then relate them by specific reference to sources of income under clauses (f) and (g) of Section 39(1). If clause (c) of Section 44 were applicable proprio vigore to income from Khudkasht land, there was no necessity to incorporate it by specific reference in clause (d)(iii) of the same Section. In other words, the deduction mentioned in clause (c) of Section 44 could have no application to the income assessed from the source under clause (b) of Section 39, but for the special provision made in sub-clause (iii) of clause (d) of Section 44. Construed consistently with the context and scheme of Section 44, it appears that the deduction mentioned in clause (c) of Section 44 was not intended to apply to the income from forest assessed under clause (e) of Section 39(1). The deduction under clause (e) of Section 44 appears to be confined to the rental income assessed under clause (a) of Section 39(1), or the income from Khudkasht lands assessed under clause (b ) of Section 39(1) to which it has been notionally applied by specific incorporation in sub-clause (iii) of clause (d) of Section 44.The High Court was, therefore, right in holding that 15% towards the cost of management could not be deducted by the Compensation Officer in respect of the income from forest calculated under clause (e) of Section 39(1). 16. Nor could the words "gross assets" occurring at the close of clause (c) in Section 44, be divorced from the context of rents and construed in the spacious sense in which they have been used in Section 39. Their meaning and scope in the context is confined to the income from rents. If these words are torn out of the context and interpreted in the comprehensive sense in which they are used in Section 39, this will lead to wholly unreasonable oppressive and absurd results. This was demonstrated by the learned Judges of the High Court, with reference to the income from mines worked directly by an intermediary, calculated under clause (g) of Section 39(1). Clause (f) of Section 44 provides that 95 per centum of the gross income determined under clause (g) of Section 39 would be deductible for the purpose of computing the net assets of the intermediary from this source. If the contention of Mr. Dikshit, that 15% deduct on under clause (c) of Section 44 is applicable to all sources of income, including from the mines under clause (g) of Section 39(1) is correct, then the income from mines directly worked by the intermediary Will suffer a double deduction 95% plus 15% under clauses (f) and (c) of Section 44. This means, instead-of paying any compensation to the intermediary, an exaction of 10 per cent will be made from him. Such could never be the intention of the Legislature. We have therefore no hesitation in repelling this contention of Mr. Dikshit. No other point has been argued before us. 17. | 0[ds]The first is a mixed question of law and fact; while the last two turn on an interpretation of Sections 39 and 44 of the Act and the Rules framed thereunder. It will, therefore be appropriate to notice here the provisions material for our purposeWe find no merit in this contention. This is a concurrent finding of fact and we see no reason to disturb it. There is no dispute with regard to the remaining four items of income from sales in0 and. The total of these four items comes to Rs. 6, 35,. I t is further common ground that out of these items, Rs. 22, 000/The issue before the Compensation Officer was: What should be t he number of years by which this figure of the total income, was to be divided to ascertain the average annual income of the forest in Village Sorna ? The contention of the intermediary was that for this purpose it should be divided by the n umber ofs only. This contention wasd we thinky the Compensation Officer But he wrongly fixed this number at 35Clause (1) (i) of Section 39(1) (e) gives a discretion to the Compensation Officer to take any figure from 20 to 40 agricultural years for the purpose of calculating the average annual income from the forests. The words "considered reasonable" insubclause(i) enjoin a duty on the Compensation Officer to exercise this discretion reasonably and not arbitrarily. Rule 34, extracted above, gives guidelines for determining the period for which average income shall be taken under the aforesaidsubclause(i). For determining such period, the Compensation Officer has to take into consideration several factors, namely, the class of the forest, the periodical fellings made therein during the 40 years preceding the vesting, the income received year after year during the 40 years preceding the vesting, the species of the trees in the forest and their age and class, the condition of forest, etcWe are afraid this argument is not based on any evidence, whatever. Mr. Dikshit referred to the evidence of Babu Singh (D.W.4.) to show that the trees left in this forest at the date of vesting were hardly 3" in diameterWe have gone through the evidence of Babu Singh (D.W.4). Far from supporting Mr. Dikshits contention, it knocks the bottom out of it. Babu Singh was a forest contractor. Babu Singh testified that be had purchased one coupe of the forest in Village Sorna for Rs. 53, 000/from the Forest Department of the State for the year ending March 1953. This means he purchased this coupe after the date of vesting. He stated that the trees purchased by him were of diameters varying from 4" to 12". The forest had a larger number of Kokath trees and less of Sal. The very fact that soon after the vesting, sale of one coupe of the forest fetched Rs. 53,, shows that it had not been mercilessly exploited. This fact of sale of one coupe of this forest by the State soon after the vesting, rather lends great strength to the finding of the High Court that its average annual income, estimated under clause (e) of Section 39(1) would not be less than Rs. 40,. By no stretch of imagination, Babu Singhs evidence could be read as showing that the annual yield from the forest on the date of vesting, was negligible.For fixing the number of years at 35 undersubclause(i) of Section 39(1)(e), the Compensation Officer had not given any reason whatever related to the criteria in Rule 34(1). On the other hand. the High Court took due note of the factors in clauses (i), (ii), (iv) and (v) of Rule 34(1), in determining the period at 20 years for calculating the average annual income. In determining this period at 20 years, the High Court rightly gave due weight to the f act that its exploitation had been scientific and prudent, and it had started yielding income from sale of trees only during 10 or 11 years preceding the date of vesting and even on the date of vesting its condition was good. Since the first fellings were within 20 years of the vesting, it was reasonable to determine the period at 20, the same being the minimum fixed in the statute. Thus, the determination of such period as 20 years by the High Court, in the facts of the case, comports best with the guidelines indicated in Rule 34(1)The Compensation Officer, as mentioned earlier, did not appraise the annual yield of the forest on the date of vesting. A plain reading of clause (e) of Section 39(1) shows that itss (i) and (ii) do not provide for two alternative methods of calculating the average annual income of the forest. The conjunction "and" at the end ofsubclause(i) cannot be read as "or". It conjoins the two sub clauses, and in effect, read in the context of "shall" in the opening part of clause (e), mandates the Compensation Officer to take both the factors into consideration in assessing the average annual income from the forest. The reason why the Legislature has made compliance with the requirement of thissubclause(ii), also, obligatory, appears to be to ensure that the compensation assessed has a reasonable nexus and proportion to the actual and potential value of the forest as on the date of vesting. If a forest has been repeatedly, wholly and indiscriminately exploited within forty years or less immediately before the vesting, its actual and potential value as a forest on the date of the vesting might be far less than the one calculated on the bas is of its average annual income of the p receding 20 to 40 years as the case may be. In such a case, average annual income calculated merely on the basis of the income for a period of 20 to 40 years preceding the vesting, may cause fortuitous inflation in the assessment of compensation, conversely, if a forest has been very little exploited in the preceding forty years and isd and welldeveloped on the date of vesting, then calculation of its average annual income on the basis ofsubclause(i) alone, without taking into account itspotential yield on the date of the vesting, will make the compensation assessed wholly illusory, having no relation whatever to the value of the forest as at the date of vesting. Ent ry of the appraised annual yield of the forest on the date of vesting, into computation under clause (e), operates as a counterpoise against fortuitous inflation or deflation in the assessment. in the view we take we are fortified by a decision of this Court in Ganga Devi v. State of Uttar Pradesh, where it was pointed out that in computing the average annual income under clause (e) of Section 39(1), the Compensation Officer has to refer to both theses (i) and (ii). He can not adopt either of these. It was also pointed out that undersubclause(ii) the annual yield on the date of vesting is to be appraised by taking into consideration, inter alia, the number and age of the trees, the area under forest and the produce. The High Court in the instant case, while determining the yield under subclause (ii) has relied upon the evidence of Mr. Chopra, a retired Forest Officer, who took all the relevant factors into consideration. The High Court also accepted the evidence of Chaudhri Babu Singh, Forest Contractor, which was to the effect that for the year ending March 1953, the sale of one coupe of this forest by the Forest Department of the State, fetched Rs. 53,. No fault therefore, can be found with the High Courts finding that on the date of vesting, the annual yield of the forest, appraised undersubclause(ii) of clause (e) was not less than Rs. 47,128/. Thefigure worked out by the High Court undersubclause(i) by dividing the total income of sales during the preceding 10 or 11 years, i.e. Rs. 6, 13,3 by 20, was Rs. 30,. The total of these figures thus worked out unders (i) and (ii), comes to Rs. 77,. If this fig ure is divided by 2, the average annual income under clause (e) would come to Rs. 38,. The High Court rounded off and raised this figure to Rs. 40,. We do not want to disturb that approximation because the sale of a coupe of the forest for the year immediately following the vesting, showed that the appraised yield of the forest on the date of vesting could be around Rs. 50,e last question that remains to be considered is, whether the High Court was right in holding that the Compensation Officer was not competent to deduct under clause (c) of Section 44, 15% from the estimated income of the forest, for management expensesWe are unable to accept this argumentThere is no warrant for reading "and" in clause (c) of Section 44 as "or". The Legislature appears to have advisedly used the expression "cost of management" in conjunction with the expression "irrecoverable arrears of rent". The former takes its colour from the latter in association with which it occurs. From the context, it appears that the expression "cost of management" is confined to the, cost of management in the collection of rentsThe scheme of Section 44 also supports this construction. Under the scheme of Section 44, a particular deduction is authorised with reference to income from a particular source. A comparative study of Sections 39(1) and 44 would show that there is no clause in the latter Section which specifically authorises deduction of 15% from the income referable to clause (e) of the former. To elaborate the point, deduction under clause (d) of Section 44 is relatable to income coming under clause (b) of Section 39.e (iii) of clause (d) of Section 44 specifically imports and applies the deduction under the preceding clause (c), to the income from the land in the personal cultivation of the intermediary. Clause (e) of Section 44 specifically refers to clause (f) of Section 39 and makes the cost of collection of income from royalties deductible at such rates as may be prescribed. Again, the deduction under clause (g) of Section 44, has by specific reference, been made applicable to the income from the source under clause (g) of Section 39(1). Had Mr. Dikshits argument, that clause (c) of Section 44 contemplates an omnibus deduction which encompasses all the sources of income assessed under clauses (a) to (g) of Section 39(1) been correct, there was no necessity to specify the quantum and nature of deductions separately in clauses (e) and (f) of Sect ion 44 and then relate them by specific reference to sources of income under clauses (f) and (g) of Section 39(1). If clause (c) of Section 44 were applicable proprio vigore to income from Khudkasht land, there was no necessity to incorporate it by specific reference in clause (d)(iii) of the same Section. In other words, the deduction mentioned in clause (c) of Section 44 could have no application to the income assessed from the source under clause (b) of Section 39, but for the special provision made insubclause(iii) of clause (d) of Section 44. Construed consistently with the context and scheme of Section 44, it appears that the deduction mentioned in clause (c) of Section 44 was not intended to apply to the income from forest assessed under clause (e) of Section 39(1). The deduction under clause (e) of Section 44 appears to be confined to the rental income assessed under clause (a) of Section 39(1), or the income from Khudkasht lands assessed under clause (b ) of Section 39(1) to which it has been notionally applied by specific incorporation insubclause(iii) of clause (d) of Section 44.The High Court was, therefore, right in holding that 15% towards the cost of management could not be deducted by the Compensation Officer in respect of the income from forest calculated under clause (e) of Section 39(1)Nor could the words "gross assets" occurring at the close of clause (c) in Section 44, be divorced from the context of rents and construed in the spacious sense in which they have been used in Section 39. Their meaning and scope in the context is confined to the income from rents. If these words are torn out of the context and interpreted in the comprehensive sense in which they are used in Section 39, this will lead to wholly unreasonable oppressive and absurd results. This was demonstrated by the learned Judges of the High Court, with reference to the income from mines worked directly by an intermediary, calculated under clause (g) of Section 39(1). Clause (f) of Section 44 provides that 95 per centum of the gross income determined under clause (g) of Section 39 would be deductible for the purpose of computing the net assets of the intermediary from this source. If the contention of Mr. Dikshit, that 15% deduct on under clause (c) of Section 44 is applicable to all sources of income, including from the mines under clause (g) of Section 39(1) is correct, then the income from mines directly worked by the intermediary Will suffer a double deduction 95% plus 15% under clauses (f) and (c) of Section 44. This means,f paying any compensation to the intermediary, an exaction of 10 per cent will be made from him. Such could never be the intention of the Legislature. We have therefore no hesitation in repelling this contention of Mr. Dikshit. No other point has been argued before us. | 0 | 5,872 | 2,698 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
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and (ii), comes to Rs. 77, 794/-. If this fig ure is divided by 2, the average annual income under clause (e) would come to Rs. 38, 897/-. The High Court rounded off and raised this figure to Rs. 40, 000/-. We do not want to disturb that approximation because the sale of a coupe of the forest for the year immediately following the vesting, showed that the appraised yield of the forest on the date of vesting could be around Rs. 50, 000/-.The last question that remains to be considered is, whether the High Court was right in holding that the Compensation Officer was not competent to deduct under clause (c) of Section 44, 15% from the estimated income of the forest, for management expenses. 12. Mr. Dikshit contends that the word "and" in clause (e) of Section 44 should be read dis- conjunctively so as to convey the sense of "or". If it is so construed proceeds the argument-15% for management cost has got to be deducted from the "gross assets" calculated under Section 39(1) from each of the sources indicated therein, including the income from forests assessed under clause (e) of that Section. 13. We are unable to accept this argument. 14. There is no warrant for reading "and" in clause (c) of Section 44 as "or". The Legislature appears to have advisedly used the expression "cost of management" in conjunction with the expression "irrecoverable arrears of rent". The former takes its colour from the latter in association with which it occurs. From the context, it appears that the expression "cost of management" is confined to the, cost of management in the collection of rents. 15. The scheme of Section 44 also supports this construction. Under the scheme of Section 44, a particular deduction is authorised with reference to income from a particular source. A comparative study of Sections 39(1) and 44 would show that there is no clause in the latter Section which specifically authorises deduction of 15% from the income referable to clause (e) of the former. To elaborate the point, deduction under clause (d) of Section 44 is relatable to income coming under clause (b) of Section 39. Sub-clause (iii) of clause (d) of Section 44 specifically imports and applies the deduction under the preceding clause (c), to the income from the land in the personal cultivation of the intermediary. Clause (e) of Section 44 specifically refers to clause (f) of Section 39 and makes the cost of collection of income from royalties deductible at such rates as may be prescribed. Again, the deduction under clause (g) of Section 44, has by specific reference, been made applicable to the income from the source under clause (g) of Section 39(1). Had Mr. Dikshits argument, that clause (c) of Section 44 contemplates an omnibus deduction which encompasses all the sources of income assessed under clauses (a) to (g) of Section 39(1) been correct, there was no necessity to specify the quantum and nature of deductions separately in clauses (e) and (f) of Sect ion 44 and then relate them by specific reference to sources of income under clauses (f) and (g) of Section 39(1). If clause (c) of Section 44 were applicable proprio vigore to income from Khudkasht land, there was no necessity to incorporate it by specific reference in clause (d)(iii) of the same Section. In other words, the deduction mentioned in clause (c) of Section 44 could have no application to the income assessed from the source under clause (b) of Section 39, but for the special provision made in sub-clause (iii) of clause (d) of Section 44. Construed consistently with the context and scheme of Section 44, it appears that the deduction mentioned in clause (c) of Section 44 was not intended to apply to the income from forest assessed under clause (e) of Section 39(1). The deduction under clause (e) of Section 44 appears to be confined to the rental income assessed under clause (a) of Section 39(1), or the income from Khudkasht lands assessed under clause (b ) of Section 39(1) to which it has been notionally applied by specific incorporation in sub-clause (iii) of clause (d) of Section 44.The High Court was, therefore, right in holding that 15% towards the cost of management could not be deducted by the Compensation Officer in respect of the income from forest calculated under clause (e) of Section 39(1). 16. Nor could the words "gross assets" occurring at the close of clause (c) in Section 44, be divorced from the context of rents and construed in the spacious sense in which they have been used in Section 39. Their meaning and scope in the context is confined to the income from rents. If these words are torn out of the context and interpreted in the comprehensive sense in which they are used in Section 39, this will lead to wholly unreasonable oppressive and absurd results. This was demonstrated by the learned Judges of the High Court, with reference to the income from mines worked directly by an intermediary, calculated under clause (g) of Section 39(1). Clause (f) of Section 44 provides that 95 per centum of the gross income determined under clause (g) of Section 39 would be deductible for the purpose of computing the net assets of the intermediary from this source. If the contention of Mr. Dikshit, that 15% deduct on under clause (c) of Section 44 is applicable to all sources of income, including from the mines under clause (g) of Section 39(1) is correct, then the income from mines directly worked by the intermediary Will suffer a double deduction 95% plus 15% under clauses (f) and (c) of Section 44. This means, instead-of paying any compensation to the intermediary, an exaction of 10 per cent will be made from him. Such could never be the intention of the Legislature. We have therefore no hesitation in repelling this contention of Mr. Dikshit. No other point has been argued before us. 17.
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coupe of this forest by the Forest Department of the State, fetched Rs. 53,. No fault therefore, can be found with the High Courts finding that on the date of vesting, the annual yield of the forest, appraised undersubclause(ii) of clause (e) was not less than Rs. 47,128/. Thefigure worked out by the High Court undersubclause(i) by dividing the total income of sales during the preceding 10 or 11 years, i.e. Rs. 6, 13,3 by 20, was Rs. 30,. The total of these figures thus worked out unders (i) and (ii), comes to Rs. 77,. If this fig ure is divided by 2, the average annual income under clause (e) would come to Rs. 38,. The High Court rounded off and raised this figure to Rs. 40,. We do not want to disturb that approximation because the sale of a coupe of the forest for the year immediately following the vesting, showed that the appraised yield of the forest on the date of vesting could be around Rs. 50,e last question that remains to be considered is, whether the High Court was right in holding that the Compensation Officer was not competent to deduct under clause (c) of Section 44, 15% from the estimated income of the forest, for management expensesWe are unable to accept this argumentThere is no warrant for reading "and" in clause (c) of Section 44 as "or". The Legislature appears to have advisedly used the expression "cost of management" in conjunction with the expression "irrecoverable arrears of rent". The former takes its colour from the latter in association with which it occurs. From the context, it appears that the expression "cost of management" is confined to the, cost of management in the collection of rentsThe scheme of Section 44 also supports this construction. Under the scheme of Section 44, a particular deduction is authorised with reference to income from a particular source. A comparative study of Sections 39(1) and 44 would show that there is no clause in the latter Section which specifically authorises deduction of 15% from the income referable to clause (e) of the former. To elaborate the point, deduction under clause (d) of Section 44 is relatable to income coming under clause (b) of Section 39.e (iii) of clause (d) of Section 44 specifically imports and applies the deduction under the preceding clause (c), to the income from the land in the personal cultivation of the intermediary. Clause (e) of Section 44 specifically refers to clause (f) of Section 39 and makes the cost of collection of income from royalties deductible at such rates as may be prescribed. Again, the deduction under clause (g) of Section 44, has by specific reference, been made applicable to the income from the source under clause (g) of Section 39(1). Had Mr. Dikshits argument, that clause (c) of Section 44 contemplates an omnibus deduction which encompasses all the sources of income assessed under clauses (a) to (g) of Section 39(1) been correct, there was no necessity to specify the quantum and nature of deductions separately in clauses (e) and (f) of Sect ion 44 and then relate them by specific reference to sources of income under clauses (f) and (g) of Section 39(1). If clause (c) of Section 44 were applicable proprio vigore to income from Khudkasht land, there was no necessity to incorporate it by specific reference in clause (d)(iii) of the same Section. In other words, the deduction mentioned in clause (c) of Section 44 could have no application to the income assessed from the source under clause (b) of Section 39, but for the special provision made insubclause(iii) of clause (d) of Section 44. Construed consistently with the context and scheme of Section 44, it appears that the deduction mentioned in clause (c) of Section 44 was not intended to apply to the income from forest assessed under clause (e) of Section 39(1). The deduction under clause (e) of Section 44 appears to be confined to the rental income assessed under clause (a) of Section 39(1), or the income from Khudkasht lands assessed under clause (b ) of Section 39(1) to which it has been notionally applied by specific incorporation insubclause(iii) of clause (d) of Section 44.The High Court was, therefore, right in holding that 15% towards the cost of management could not be deducted by the Compensation Officer in respect of the income from forest calculated under clause (e) of Section 39(1)Nor could the words "gross assets" occurring at the close of clause (c) in Section 44, be divorced from the context of rents and construed in the spacious sense in which they have been used in Section 39. Their meaning and scope in the context is confined to the income from rents. If these words are torn out of the context and interpreted in the comprehensive sense in which they are used in Section 39, this will lead to wholly unreasonable oppressive and absurd results. This was demonstrated by the learned Judges of the High Court, with reference to the income from mines worked directly by an intermediary, calculated under clause (g) of Section 39(1). Clause (f) of Section 44 provides that 95 per centum of the gross income determined under clause (g) of Section 39 would be deductible for the purpose of computing the net assets of the intermediary from this source. If the contention of Mr. Dikshit, that 15% deduct on under clause (c) of Section 44 is applicable to all sources of income, including from the mines under clause (g) of Section 39(1) is correct, then the income from mines directly worked by the intermediary Will suffer a double deduction 95% plus 15% under clauses (f) and (c) of Section 44. This means,f paying any compensation to the intermediary, an exaction of 10 per cent will be made from him. Such could never be the intention of the Legislature. We have therefore no hesitation in repelling this contention of Mr. Dikshit. No other point has been argued before us.
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B. Krishna Bhat Vs. Union of India | SABYASACHI MUKHARJI, C.J. 1. This is a petition under Article 32 of the Constitution of India. The petitioner claims to be "a public spirited individual". He further claims to be a person aggrieved and seeks to assail the constitutional validity of the State of Karnataka and the Union of India not promoting, enforcing and carrying out the policy of prohibition i.e. manufacturing, sale and consumption of intoxicating drinks and drugs throughout the country - India - Bharat, and also assails the constitutional validity of sub-clause (b) of Rule 11 of the Karnataka Excise (Sales of Indian and Foreign Liquors) Rules, 1968 as amended by the Karnataka Excise (Sale of Indian and Foreign Liquors) (Amendment) Rules, 1989 which came in force on September 10, 1989. 2. The petitioner refers to the preamble to the Constitutional which, according to him explains the general purpose behind the general provisions of the Constitution. He refers to Mahatma Gandhi and his commitment to prohibition. According to the petitioner, manufacture, sale and consumption of intoxicating drinks and drugs have become a stumbling block and a dangerous dragon to the progress and stability of the nation as a whole. The petitioner states that unless this dragon is completely destroyed the country could never think of achieving the objects of the Constitution and justice - social, economic and political. People are flouting the laws of this country, therefore, the petitioner objects that the State should take upon itself the business of selling liquors. He has asserted that the State of Karnataka instead of bringing total prohibition in the State, has evinced interest in taking up the responsibility of selling liquors to the general public. Hence, it is bad and contrary to the Constitution, and he challenges the amendment which prescribes the license for sale shall be issued to only such company owned or controlled by the State Government as the State Government may specify. According to the petitioner, such a rule is unconstitutional. He draws our attention to Article 47 of the Constitution of India which indicates directive principles. 3. In the aforesaid view of the matter he claims that this Court should direct the Union of India and other State Governments to enforce the policy of total prohibition throughout the country including the State of Karnataka and to impose restrictions on manufacture, sale and consumption of intoxicating drinks and to declare Rule 3, of these Rules as void and unconstitutional.4. We are unable to entertain this writ petition under Article 32 of the Constitution. The petition of the petitioner is that the policy of prohibition is not being implemented as enjoined by Article 47 of the constitution. In our opinion, it is not entertainable. Article 47 of the Constitution, which is part of our Directive Principles of State Policy enjoins that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 47 is in part IV of the Constitution which contains directive Principles of State Policy. Article 37 enjoins that the provisions of this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It has borne in mind that Article 32 of the Constitution gives the Supreme Court the power to enforce rights which are fundamental rights. Fundamental Rights are justiciable, Directive Principles are not. Directive Principles are aimed at securing certain values or enforce certain attitudes in the law making and in the administration of law. Directive Principles cannot in the very nature of things be enforced in a court of law. See in this connection the observations of this Court in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India ( 1981 (1) SCC 246 Whether a law should be made embodying the principles of Directive Principles depends on the legislative will of the legislation. What the petitioner seeks to achieve by this application is to inject a sense of priority and urgency in that legislative will. Determining the choice of priorities and formulating perspective thereof, is a matter of policy. Article 32 is not the machinery through which policy preferences or priorities are determined and this Court is not the forum where the conflicting claims of policies or priorities should be debated. See the observations of this Court in Rustom Cavasjee v. Union of India.5. We find no direct or casual violation of any fundamental right of which the petitioner can legitimately claim enforcement in this application. To make the State Accept a particular policy, desirable and necessary as the policy might be is not the function of Article 32 of the Constitution. Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of public spirited persons | 0[ds]4. We are unable to entertain this writ petition under Article 32 of the Constitution. The petition of the petitioner is that the policy of prohibition is not being implemented as enjoined by Article 47 of the constitution. In our opinion, it is not entertainable. Article 47 of the Constitution, which is part of our Directive Principles of State Policy enjoins that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 47 is in part IV of the Constitution which contains directive Principles of State Policy. Article 37 enjoins that the provisions of this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It has borne in mind that Article 32 of the Constitution gives the Supreme Court the power to enforce rights which are fundamental rights. Fundamental Rights are justiciable, Directive Principles are not. Directive Principles are aimed at securing certain values or enforce certain attitudes in the law making and in the administration of law. Directive Principles cannot in the very nature of things be enforced in a court of law. See in this connection the observations of this Court in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India ( 1981 (1) SCC 246 Whether a law should be made embodying the principles of Directive Principles depends on the legislative will of the legislation. What the petitioner seeks to achieve by this application is to inject a sense of priority and urgency in that legislative will. Determining the choice of priorities and formulating perspective thereof, is a matter of policy. Article 32 is not the machinery through which policy preferences or priorities are determined and this Court is not the forum where the conflicting claims of policies or priorities should be debated. See the observations of this Court in Rustom Cavasjee v. Union of India.5. We find no direct or casual violation of any fundamental right of which the petitioner can legitimately claim enforcement in this application. To make the State Accept a particular policy, desirable and necessary as the policy might be is not the function of Article 32 of the Constitution. Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of public spirited persons | 0 | 929 | 485 | ### 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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SABYASACHI MUKHARJI, C.J. 1. This is a petition under Article 32 of the Constitution of India. The petitioner claims to be "a public spirited individual". He further claims to be a person aggrieved and seeks to assail the constitutional validity of the State of Karnataka and the Union of India not promoting, enforcing and carrying out the policy of prohibition i.e. manufacturing, sale and consumption of intoxicating drinks and drugs throughout the country - India - Bharat, and also assails the constitutional validity of sub-clause (b) of Rule 11 of the Karnataka Excise (Sales of Indian and Foreign Liquors) Rules, 1968 as amended by the Karnataka Excise (Sale of Indian and Foreign Liquors) (Amendment) Rules, 1989 which came in force on September 10, 1989. 2. The petitioner refers to the preamble to the Constitutional which, according to him explains the general purpose behind the general provisions of the Constitution. He refers to Mahatma Gandhi and his commitment to prohibition. According to the petitioner, manufacture, sale and consumption of intoxicating drinks and drugs have become a stumbling block and a dangerous dragon to the progress and stability of the nation as a whole. The petitioner states that unless this dragon is completely destroyed the country could never think of achieving the objects of the Constitution and justice - social, economic and political. People are flouting the laws of this country, therefore, the petitioner objects that the State should take upon itself the business of selling liquors. He has asserted that the State of Karnataka instead of bringing total prohibition in the State, has evinced interest in taking up the responsibility of selling liquors to the general public. Hence, it is bad and contrary to the Constitution, and he challenges the amendment which prescribes the license for sale shall be issued to only such company owned or controlled by the State Government as the State Government may specify. According to the petitioner, such a rule is unconstitutional. He draws our attention to Article 47 of the Constitution of India which indicates directive principles. 3. In the aforesaid view of the matter he claims that this Court should direct the Union of India and other State Governments to enforce the policy of total prohibition throughout the country including the State of Karnataka and to impose restrictions on manufacture, sale and consumption of intoxicating drinks and to declare Rule 3, of these Rules as void and unconstitutional.4. We are unable to entertain this writ petition under Article 32 of the Constitution. The petition of the petitioner is that the policy of prohibition is not being implemented as enjoined by Article 47 of the constitution. In our opinion, it is not entertainable. Article 47 of the Constitution, which is part of our Directive Principles of State Policy enjoins that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 47 is in part IV of the Constitution which contains directive Principles of State Policy. Article 37 enjoins that the provisions of this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It has borne in mind that Article 32 of the Constitution gives the Supreme Court the power to enforce rights which are fundamental rights. Fundamental Rights are justiciable, Directive Principles are not. Directive Principles are aimed at securing certain values or enforce certain attitudes in the law making and in the administration of law. Directive Principles cannot in the very nature of things be enforced in a court of law. See in this connection the observations of this Court in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India ( 1981 (1) SCC 246 Whether a law should be made embodying the principles of Directive Principles depends on the legislative will of the legislation. What the petitioner seeks to achieve by this application is to inject a sense of priority and urgency in that legislative will. Determining the choice of priorities and formulating perspective thereof, is a matter of policy. Article 32 is not the machinery through which policy preferences or priorities are determined and this Court is not the forum where the conflicting claims of policies or priorities should be debated. See the observations of this Court in Rustom Cavasjee v. Union of India.5. We find no direct or casual violation of any fundamental right of which the petitioner can legitimately claim enforcement in this application. To make the State Accept a particular policy, desirable and necessary as the policy might be is not the function of Article 32 of the Constitution. Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of public spirited persons
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4. We are unable to entertain this writ petition under Article 32 of the Constitution. The petition of the petitioner is that the policy of prohibition is not being implemented as enjoined by Article 47 of the constitution. In our opinion, it is not entertainable. Article 47 of the Constitution, which is part of our Directive Principles of State Policy enjoins that the State shall regard the raising of the level of nutrition and the standard of living of its people and the improvement of public health as among its primary duties and, in particular, the State shall endeavor to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health. Article 47 is in part IV of the Constitution which contains directive Principles of State Policy. Article 37 enjoins that the provisions of this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws. It has borne in mind that Article 32 of the Constitution gives the Supreme Court the power to enforce rights which are fundamental rights. Fundamental Rights are justiciable, Directive Principles are not. Directive Principles are aimed at securing certain values or enforce certain attitudes in the law making and in the administration of law. Directive Principles cannot in the very nature of things be enforced in a court of law. See in this connection the observations of this Court in Akhil Bharatiya Soshit Karamchari Sangh (Rly.) v. Union of India ( 1981 (1) SCC 246 Whether a law should be made embodying the principles of Directive Principles depends on the legislative will of the legislation. What the petitioner seeks to achieve by this application is to inject a sense of priority and urgency in that legislative will. Determining the choice of priorities and formulating perspective thereof, is a matter of policy. Article 32 is not the machinery through which policy preferences or priorities are determined and this Court is not the forum where the conflicting claims of policies or priorities should be debated. See the observations of this Court in Rustom Cavasjee v. Union of India.5. We find no direct or casual violation of any fundamental right of which the petitioner can legitimately claim enforcement in this application. To make the State Accept a particular policy, desirable and necessary as the policy might be is not the function of Article 32 of the Constitution. Article 32 of the Indian Constitution is not the nest for all the bees in the bonnet of public spirited persons
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Lokmanya Mills Barsi Ltd Vs. Barsi Borough Municipality | of the tax-payer to challenge the valuation illusory. An assessment list prepared under S. 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax-payers may raise is in substance restricted to the area and not to the valuation.6. Counsel for the Municipality sought to rely upon M. and S. M. Rly. Co., Ltd. v. Bezwada Municipality. ILR 1945 Mad 1: (AIR 1944 PC 71 ) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied. By S. 81 sub-sec. (2) of the Madras District Municipalities Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council. By S. 82 sub-sec. (2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6 per cent of the total of the estimated value of the land and the estimated present cost of erecting the building subject to certain deductions. The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6 per cent of its capital value. This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to S. 82(2) were by necessary implication prohibited. This contention was rejected because reality of the substantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related. Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under S. 82(2) on the annual value and that value could be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant may reasonably be expected to pay for the lands in question. This case has in our judgment no relevance to the present case.7. If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not be open to challenge, but the method adopted was not a recognised method of levying the rate.8. The High Court relied upon its earlier judgment in Borough Municipality, Amalner v. Pratap Spinning Weaving and Manufacturing Co., Ltd., Amalner, ILR (1952) Bom 918: (AIR 1952 Bom 401 ). In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals. The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a percentage of the annual letting value which was computed on the floor area of "mills and factories." The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable" and that the valuation of the property by reference to the floor area was not altogether unknown to the law of rating. The High Court also observed that in assessing the rent which a hypothetical tenant may pay, several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent with the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate, the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge. It was assumed in that case that all factory buildings within the area of the Amalner Municipality were alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question. In our view, this approach to a rating problem arising under the Act is not permissible. In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware-houses, godowns and shops of the mills situate in the compound of the mills, may be separately let at the uniform rate prescribed by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonable fetch if let out to tenants and in the virtual deprivation to the rate-payer of his statutory right to object to the valuation.9. Another judgment of the Bombay High Court in Motiram Keshavdas v. Ahmedabad Municipal Borough, 44 Bom LR 280 : (AIR 1942 Bom 177 ) calls for reference. It was held in Motirams case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of S. 73(x) of the Bombay Municipal Boroughs act, 1925, and the rule which authorised the levy of such a lump sum was ultra vires. | 1[ds]By S, 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of Ss. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water-rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form. Section 75 prescribes the procedure preliminary to imposing a tax. The procedure for assessing the liability to rates on lands and buildings is prescribed by Ss. 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment. When a rate on building or lands or both is imposed, the Chief Officer causes an assessment-list of all buildings or land or both is imposed, the Chief Officer causes an assessment-list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon. The expression "Annual letting value" is defined in S. 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy. | 1 | 2,495 | 324 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
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of the tax-payer to challenge the valuation illusory. An assessment list prepared under S. 78, before it is authenticated and finalised, must be published and the taxpayers must be given an opportunity to object to the valuation. By the assessment list in which the valuation is not based upon the capital value of the building or the rental which the building may fetch, but on the floor area, the objection which the tax-payers may raise is in substance restricted to the area and not to the valuation.6. Counsel for the Municipality sought to rely upon M. and S. M. Rly. Co., Ltd. v. Bezwada Municipality. ILR 1945 Mad 1: (AIR 1944 PC 71 ) decided by the Judicial Committee of the Privy Council, in support of the plea that the rate based on valuation in proportion to the floor area is validly levied. By S. 81 sub-sec. (2) of the Madras District Municipalities Act, 1920, a tax for general purposes and a water and drainage tax were to be levied at such fractions of the annual value of lands or buildings or both as may be fixed by the Municipal Council. By S. 82 sub-sec. (2) of that Act, the annual value of lands and buildings was to be the gross annual rent at which they may reasonably be expected to let, but the proviso, it was enacted that in the case of any Government or Railway building, the annual value of the premises shall be deemed to be 6 per cent of the total of the estimated value of the land and the estimated present cost of erecting the building subject to certain deductions. The Municipality of Bezwada levied property tax on a piece of vacant land belonging to the Madras and Southern Mahratta Railway Company on the annual value computed at 6 per cent of its capital value. This method of taxation was challenged by the Railway Company on the contention that all methods of valuation other than the method prescribed by the proviso to S. 82(2) were by necessary implication prohibited. This contention was rejected because reality of the substantive enactment was left unqualified except in so far as it concerned the particular subjects to which the proviso related. Open lands were not covered by the proviso and it was competent to the municipality to levy the tax under S. 82(2) on the annual value and that value could be determined by any of the recognised methods of arriving at the rent which a hypothetical tenant may reasonably be expected to pay for the lands in question. This case has in our judgment no relevance to the present case.7. If the Municipality of Barsi had adopted any of the recognised methods of valuation for assessing the annual letting value, the tax would not be open to challenge, but the method adopted was not a recognised method of levying the rate.8. The High Court relied upon its earlier judgment in Borough Municipality, Amalner v. Pratap Spinning Weaving and Manufacturing Co., Ltd., Amalner, ILR (1952) Bom 918: (AIR 1952 Bom 401 ). In that case, the court negatived the challenge to the validity of the rules similar to those impugned in these appeals. The Amalner Municipality had by rules framed under the Bombay Municipal Boroughs Act sought to levy a rate equal to a percentage of the annual letting value which was computed on the floor area of "mills and factories." The court held that the method of taxation adopted by the Municipality had remained unchallenged for a long time, that the rules had been sanctioned by the Government and they were not shown to be "capricious, arbitrary and unreasonable" and that the valuation of the property by reference to the floor area was not altogether unknown to the law of rating. The High Court also observed that in assessing the rent which a hypothetical tenant may pay, several methods are open to the Municipality and if on examining the cases of all the factory buildings within their jurisdiction, the Municipality concluded that the rent with the hypothetical tenant may reasonably be expected to pay for those buildings fits in with the rent which they had fixed by adopting the flat and uniform rate, the principle of fixing the annual letting value on the basis of the floor area would not be open to challenge. It was assumed in that case that all factory buildings within the area of the Amalner Municipality were alike in essential features and were intended to be used for purposes which were alike, and that probably the Municipality may have been satisfied that the principle enunciated in the rule impugned worked out on the whole as a fair basis for determining the valuation of the building in question. In our view, this approach to a rating problem arising under the Act is not permissible. In any event, there is no evidence on the record of this case that the factories and "buildings relating thereto" such as ware-houses, godowns and shops of the mills situate in the compound of the mills, may be separately let at the uniform rate prescribed by the Municipality. The vice of the rule lies in an assumed uniformity of return per square foot which structures of different classes which are in their nature not similar, may reasonable fetch if let out to tenants and in the virtual deprivation to the rate-payer of his statutory right to object to the valuation.9. Another judgment of the Bombay High Court in Motiram Keshavdas v. Ahmedabad Municipal Borough, 44 Bom LR 280 : (AIR 1942 Bom 177 ) calls for reference. It was held in Motirams case that a water tax imposed by the Ahmedabad Municipality as a rate not depending upon the value of the property assessed but in lump sum was not a rate for the purpose of S. 73(x) of the Bombay Municipal Boroughs act, 1925, and the rule which authorised the levy of such a lump sum was ultra vires.
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1
### Explanation:
By S, 73, the Municipality is authorised subject to any general or special orders which the State Government may make in that behalf and to the provisions of Ss. 75 and 76, to impose for the purposes of the Act any one or more of the classes of taxes, amongst which are included a rate on buildings or lands or both situate within the municipal borough and general water-rate which may be imposed in the form of a rate assessed on buildings or lands or in any other form. Section 75 prescribes the procedure preliminary to imposing a tax. The procedure for assessing the liability to rates on lands and buildings is prescribed by Ss. 78 to 84 of the Act which provide for preparation of the assessment list, its authentication and amendment. When a rate on building or lands or both is imposed, the Chief Officer causes an assessment-list of all buildings or land or both is imposed, the Chief Officer causes an assessment-list of all buildings or lands or lands and buildings in the municipal borough to be prepared containing inter alia the names of the owner, the valuation based on capital or annual letting value as the case may be on which the property is assessed and the amount of tax assessed thereon. The expression "Annual letting value" is defined in S. 3(1) of the Act as meaning the annual rent for which any building or land, exclusive of furniture or machinery contained or situate therein or thereon might reasonably be expected to let from year to year, and shall include all payments made or agreed to be made by a tenant to the owner of the building or land on account of occupation, taxes, insurance or other charges incidental to his tenancy.
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The Berar Swadeshi Vanaspathi and Ors Vs. The Municipal Committee, Shegaon and Anr | scheme of the Act, Chapter IX of which relates to the imposition, assessment and collection of taxes. Section 66 enumerates the taxes which may be imposed and S. 67 prescribes the procedure for imposing taxes. Section 67 reads as under- Section 67:(1) "A committee may, at a special meeting, pass a resolution to propose the imposition of any tax under section 66.(2) When such a resolution has been passed, the committee shall publish in accordance with rules made under this Act, a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted.(3) Any inhabitant of the municipality objecting to the proposed tax may, within thirty days from the publication of the notice, submit his objection in writing to the committee.(4) The committee shall take the proposal and all objections received thereto into consideration at a special meeting, and may modify the proposals so as not to affect their substance, and may then forward them to the Provincial Government along with all objections received, its decisions thereon and its reasons therefor. If the committee decided to modify the proposals so as to affect their substance it shall publish them again in the manner prescribed in sub-section (2).(5) The Provincial Government, on receiving such proposals may sanction or refuse to sanction the same, or sanction them subject to such modifications as it may think fit, or return them to the committee for further consideration :(6) ......................................................(7) If any proposals for taxation have been sanctioned under sub-section (5) the Provincial Government may, by notification direct the imposition of the tax as sanctioned from such date as may be specified in such notification, and thereupon the tax shall come into effect as from the date so specified.(8) A notification of the imposition of a tax under this section, shall be conclusive evidence that the tax has been imposed in accordance with the provision of this Act." The objection to the vines of the notification in regard to procedure is that the objections raised by appellant No. 1, though within time, were not considered on their merits and were rejected merely on the ground that there was only one objector and as this was one of the essential steps for the validity of the imposition it could not be said that S. 67 had been complied with; and the imposition was therefore invalid. The High Court rejected this plea because of S. 67(8), although it found that non-consideration of the objections was an error in procedure. The language of subs. (8) lends support to this view. It provides that the issuance of the notification imposing a tax shall be conclusive evidence that the tax had been imposed in accordance with the provisions of the Act. But it was argued that as a matter of fact there was no notification imposing the tax and therefore the question of conclusive evidence does not arise. This, in our opinion, is not established.5. As stated above, there were two notifications issued by the Government both of October 27, 1956. One was published in the Gazette on October 30, 1956, and the other on the following day. The first notification was as follows :-"No. 4963-5869-M-XIII.-In exercise of the powers conferred by sections 71, 76 and 85 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to sanction the following draft rules for assessment, collection and refund of the octroi tax within the limits of the Shegaon Municipality, in the Buldana District.The rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary":-And the second notification stated:-"No. 4962-5869-M-XIII.-In exercise of the powers conferred by sub-section (2) of section 67 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to confirm the following draft rules for the imposition of the octroi tax within the limits of the SHEGAON MUNICIPAL COMMITTEE in the Buldana district, under clause (c) of sub-section (1) of section 66 of the said Act, on animals and goods brought for sale, expenditure or use in supersession of the rules of terminal tax, sanctioned, under Notification No. 37-16-B-VIII dated the 15th February, 1921.The rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary".-The first notification purports to be in exercise of the powers under S. 71, which relates to Rules for assessment and for preventing evasion of assessment of taxes; to S. 76 which provides for collection of taxes and S. 85 which relates to refunds. That notification therefore lays down the various rules and other matters necessary for the collection of taxes. The second notification on the face of it is under sub-s. 2 of S. 67. It appears to us that this is a mistake and should have been under sub-s. (7) of S.67. By this notification the State Government confirmed the draft rules for the imposition of the octroi duty which in the context must mean imposition of the tax because the very first rule states:-Rule 1 "Octroi shall ordinarily be levied on commodities included in the following classes and specified in the schedules. hereto annexed and at the rates therein entered".The various classes of articles and commodities on which octroi was to be levied are then set out and then the exceptions and explanations are given. With these rules are the schedules specifying the goods under each class which are liable to octroi duty and the rate at which the octroi duty was chargeable. This notification therefore clearly is one which directs imposition of octroi and falls within sub-s. (7) of S. 67 and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken. | 0[ds]5. As stated above, there were two notifications issued by the Government both of October 27, 1956. One was published in the Gazette on October 30, 1956, and the other on the following day. The first notification was as follows4963-5869-M-XIII.-In exercise of the powers conferred by sections 71, 76 and 85 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to sanction the following draft rules for assessment, collection and refund of the octroi tax within the limits of the Shegaon Municipality, in the Buldanarules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary":-And the second notification4962-5869-M-XIII.-In exercise of the powers conferred by sub-section (2) of section 67 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to confirm the following draft rules for the imposition of the octroi tax within the limits of the SHEGAON MUNICIPAL COMMITTEE in the Buldana district, under clause (c) of sub-section (1) of section 66 of the said Act, on animals and goods brought for sale, expenditure or use in supersession of the rules of terminal tax, sanctioned, under Notification No. 37-16-B-VIII dated the 15th February,rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary".-The first notification purports to be in exercise of the powers under S. 71, which relates to Rules for assessment and for preventing evasion of assessment of taxes; to S. 76 which provides for collection of taxes and S. 85 which relates to refunds. That notification therefore lays down the various rules and other matters necessary for the collection of taxes. The second notification on the face of it is under sub-s. 2 of S.It appears to us that this is a mistake and should have been under sub-s. (7) of S.67. By this notification the State Government confirmed the draft rules for the imposition of the octroi duty which in the context must mean imposition of the tax because the very first rule states:-Rule 1 "Octroi shall ordinarily be levied on commodities included in the following classes and specified in the schedules. hereto annexed and at the rates therein entered".The various classes of articles and commodities on which octroi was to be levied are then set out and then the exceptions and explanations are given. With these rules are the schedules specifying the goods under each class which are liable to octroi duty and the rate at which the octroi duty was chargeable. This notification therefore clearly is one which directs imposition of octroi and falls within sub-s. (7) of S. 67 and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken. | 0 | 1,681 | 545 | ### 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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scheme of the Act, Chapter IX of which relates to the imposition, assessment and collection of taxes. Section 66 enumerates the taxes which may be imposed and S. 67 prescribes the procedure for imposing taxes. Section 67 reads as under- Section 67:(1) "A committee may, at a special meeting, pass a resolution to propose the imposition of any tax under section 66.(2) When such a resolution has been passed, the committee shall publish in accordance with rules made under this Act, a notice defining the class of persons or description of property proposed to be taxed, the amount or rate of the tax to be imposed and the system of assessment to be adopted.(3) Any inhabitant of the municipality objecting to the proposed tax may, within thirty days from the publication of the notice, submit his objection in writing to the committee.(4) The committee shall take the proposal and all objections received thereto into consideration at a special meeting, and may modify the proposals so as not to affect their substance, and may then forward them to the Provincial Government along with all objections received, its decisions thereon and its reasons therefor. If the committee decided to modify the proposals so as to affect their substance it shall publish them again in the manner prescribed in sub-section (2).(5) The Provincial Government, on receiving such proposals may sanction or refuse to sanction the same, or sanction them subject to such modifications as it may think fit, or return them to the committee for further consideration :(6) ......................................................(7) If any proposals for taxation have been sanctioned under sub-section (5) the Provincial Government may, by notification direct the imposition of the tax as sanctioned from such date as may be specified in such notification, and thereupon the tax shall come into effect as from the date so specified.(8) A notification of the imposition of a tax under this section, shall be conclusive evidence that the tax has been imposed in accordance with the provision of this Act." The objection to the vines of the notification in regard to procedure is that the objections raised by appellant No. 1, though within time, were not considered on their merits and were rejected merely on the ground that there was only one objector and as this was one of the essential steps for the validity of the imposition it could not be said that S. 67 had been complied with; and the imposition was therefore invalid. The High Court rejected this plea because of S. 67(8), although it found that non-consideration of the objections was an error in procedure. The language of subs. (8) lends support to this view. It provides that the issuance of the notification imposing a tax shall be conclusive evidence that the tax had been imposed in accordance with the provisions of the Act. But it was argued that as a matter of fact there was no notification imposing the tax and therefore the question of conclusive evidence does not arise. This, in our opinion, is not established.5. As stated above, there were two notifications issued by the Government both of October 27, 1956. One was published in the Gazette on October 30, 1956, and the other on the following day. The first notification was as follows :-"No. 4963-5869-M-XIII.-In exercise of the powers conferred by sections 71, 76 and 85 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to sanction the following draft rules for assessment, collection and refund of the octroi tax within the limits of the Shegaon Municipality, in the Buldana District.The rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary":-And the second notification stated:-"No. 4962-5869-M-XIII.-In exercise of the powers conferred by sub-section (2) of section 67 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to confirm the following draft rules for the imposition of the octroi tax within the limits of the SHEGAON MUNICIPAL COMMITTEE in the Buldana district, under clause (c) of sub-section (1) of section 66 of the said Act, on animals and goods brought for sale, expenditure or use in supersession of the rules of terminal tax, sanctioned, under Notification No. 37-16-B-VIII dated the 15th February, 1921.The rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary".-The first notification purports to be in exercise of the powers under S. 71, which relates to Rules for assessment and for preventing evasion of assessment of taxes; to S. 76 which provides for collection of taxes and S. 85 which relates to refunds. That notification therefore lays down the various rules and other matters necessary for the collection of taxes. The second notification on the face of it is under sub-s. 2 of S. 67. It appears to us that this is a mistake and should have been under sub-s. (7) of S.67. By this notification the State Government confirmed the draft rules for the imposition of the octroi duty which in the context must mean imposition of the tax because the very first rule states:-Rule 1 "Octroi shall ordinarily be levied on commodities included in the following classes and specified in the schedules. hereto annexed and at the rates therein entered".The various classes of articles and commodities on which octroi was to be levied are then set out and then the exceptions and explanations are given. With these rules are the schedules specifying the goods under each class which are liable to octroi duty and the rate at which the octroi duty was chargeable. This notification therefore clearly is one which directs imposition of octroi and falls within sub-s. (7) of S. 67 and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken.
### Response:
0
### Explanation:
5. As stated above, there were two notifications issued by the Government both of October 27, 1956. One was published in the Gazette on October 30, 1956, and the other on the following day. The first notification was as follows4963-5869-M-XIII.-In exercise of the powers conferred by sections 71, 76 and 85 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to sanction the following draft rules for assessment, collection and refund of the octroi tax within the limits of the Shegaon Municipality, in the Buldanarules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary":-And the second notification4962-5869-M-XIII.-In exercise of the powers conferred by sub-section (2) of section 67 of the Central Provinces and Berar Municipalities Act, 1922 (II of 1922), the State Government are pleased to confirm the following draft rules for the imposition of the octroi tax within the limits of the SHEGAON MUNICIPAL COMMITTEE in the Buldana district, under clause (c) of sub-section (1) of section 66 of the said Act, on animals and goods brought for sale, expenditure or use in supersession of the rules of terminal tax, sanctioned, under Notification No. 37-16-B-VIII dated the 15th February,rules shall come into force from the date of their publication in the Madhya Pradesh Gazette Extraordinary".-The first notification purports to be in exercise of the powers under S. 71, which relates to Rules for assessment and for preventing evasion of assessment of taxes; to S. 76 which provides for collection of taxes and S. 85 which relates to refunds. That notification therefore lays down the various rules and other matters necessary for the collection of taxes. The second notification on the face of it is under sub-s. 2 of S.It appears to us that this is a mistake and should have been under sub-s. (7) of S.67. By this notification the State Government confirmed the draft rules for the imposition of the octroi duty which in the context must mean imposition of the tax because the very first rule states:-Rule 1 "Octroi shall ordinarily be levied on commodities included in the following classes and specified in the schedules. hereto annexed and at the rates therein entered".The various classes of articles and commodities on which octroi was to be levied are then set out and then the exceptions and explanations are given. With these rules are the schedules specifying the goods under each class which are liable to octroi duty and the rate at which the octroi duty was chargeable. This notification therefore clearly is one which directs imposition of octroi and falls within sub-s. (7) of S. 67 and having been notified in the Gazette it is conclusive evidence of the tax having been imposed in accordance with the provisions of the Act and it cannot be challenged on the ground that all the necessary steps had not been taken.
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The Commissioner Of Income-Tax, Madras Vs. A. Krishnaswami Mudaliar And Others | earn those receipts. In the second place the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of Income-tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating Excess Profits Duty, as the case may be. For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchants or manufacturers business the value of the stock-in-trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes."Similarly in Commissioner of Income-tax and Excess Profits Tax, Madras v. M/s. Chari and Ram Madura, 1949-17 ITR 1 : (AIR 1949 Mad 580 ) Rajamannar C. J., observed that stock-in-trade in hand is an essential item in the computation of the profits for a period.18. "Profits" as observed by Fletcher Moultion, L. J., in the Spanish Prospecting Co. Ltd., In re 1911-1 Ch. 92"implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. The fundamental meaning is the amount of gains made by the business during the year. This can only be a ascertained by a comparison of the assets of the business at the two dates."We start therefore with this fundamental definition of profits, namely, if the total assets of the business at the two dates be compared, the increase which they show at the later date as compared with the earlier date x x x x x x x represents in strictness the profits of the business during the period in question."It is true that in that case Fletcher Moulton, L. J., made the observations not in dealing with a profit and loss account in a case relating to taxation, but with a balance-sheet of a company intended to show the actual financial condition of a business at the end of a year. The observations however do show that in ascertaining profits what may be regarded as normal book-keeping practice has to be observed. Whether in the case of trading in special classes of assets appropriate adjustments may have to be made is beside the point.19. The Income-tax Act makes no provision with regard to the valuation of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading venture these profits have to be adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it is the duty of the Income-tax Officer to find out what profits the business has made according to true accountancy practice, in the light of the system adopted, and thereafter to make the requisite adjustments, and even appropriate modification of the rule suggested by Fletcher-Moulton, L. J., to ascertain the taxable profits. It is true as observed by Lord Buckmaster in Naval Colliery Co. Ltd. v. Commissioner of Inland Revenue, (1928) 12 Tax Cas 1017 that the principle of determining the profits of the trade by valuing everything at the beginning and the end of the accounting period and by finding the difference may not be universally applicable in all cases, and needs material modification. The formula suggested in the Spanish Prospecting Co. case, 1911-1 Ch 92 was sought to be applied to a case in which Excess Profits duty was assessed. The assessee a mining company was unable to work its colliery on account of a strike. The assessee sought to introduce into its account which normally ended on June 30, 1921, the estimated expenses for repairing the damage (which though arising in the account period was restored later) on the plea that the expenses were in the nature of liability of business and properly debitable before they were actually incurred. The House of Lords rejected that contention. It was in this context that Lord Buckmaster observed that the accountancy rules applicable to wise and prudent trading could not be used in connection with the working of a mining lease.20. These observations do not affect the true character of the profits of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that in the case of a trading venture, you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an outgoing for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account.21. There is no warrant in this case for assuming that the Revenue authorities and the Tribunal had sought to displace the method of accountancy adopted by the assessee. By applying the proviso to S. 13 they made the computation upon the basis and in the manner in which in their opinion profits would be properly deduced. That they were entitled to do. We are, therefore, of the view that the High Court was in error in holding that because the assessee had maintained his account in the cash system it was not open to the Income-tax Officer to add to the receipts from the business the value of the stock-in-trade at the end of the year for the purpose of properly deducing the profits of the business for the year in question.22 | 1[ds]15. In this case it is necessary to consider whether the method of accounting adopted of ignoring the value of the stock-in-trade may be regarded as regularly employed by the respondent firm, when it is first year of account. It is common ground that the method of accounting was not mercantile, but was wholly or primarily cash. The Income-tax Officer was of the view that in the absence of stock valuation of the film which was a wasting asset of the partnership and which was exploited for earning profits, the income of the firm could not properly be deduced and with that view the Appellate Assistant Commissioner and the Tribunal have agreed. The High Court, however, held that the maintenance of account on cash basis being a recognised method of accounting the Income-tax Officer was bound by the choice of the assessee who had adopted that system of accounting, and to compute the income in accordance with that method, unless the Income-tax Officer was satisfied the assessee had not regularly adopted that system. The High Court also observed that what the Department had done was to make the assessment on the basis that the system of accounting adopted by the assessee was mercantile system which the assessee had never adopted, and thereby computed the profits of the assessee, by taking into consideration valuation of the closing stock which was not an incident of the cash system. The Income-tax Officer had in the view of the High Court no power under the proviso to S. 13 "to force a different system on the assessee either the mercantile system or a hybrid system of cash plus valuation of closing stock."16.In coming to that conclusion, in our judgment, the High Court erred. Note the facts: an amount of Rs. 1,00,000/- was paid by the firm for acquiring a wasting asset which was to be exploited for the benefit of the partnership. The price paid for acquiring the asset was debited as an outgoing. At the end of the year there was a total collection of Rs. 1,46,849/- by the exploitation of the asset. The expenses for carrying on the business amounted to Rs. 18,206/-. The result according to the respondent firm was a net profit of Rs.28,647/-. This was arrived at by posting the outgoing for acquiring its stock-in-trade as a proper debit, and ignoring the value of that asset at the end of the year altogether. Under the Income-tax Act for the purpose of the assessment each year is a self-contained unit, and if out of the receipts the cost of the film was to be deducted in the absence of an entry crediting the value of the asset at the end of the year, for arriving at the income of the profit of the firm would either wholly or substantially be absorbed in the amortization of the capital value of the asset. The result of the accounting would therefore give a false picture of the partnership, however, lucrative the business may in reality be. The methods of computation of taxable incomes prescribed by the Act of different kinds of income are undoubtedly highly artificial, but the Act does not compel the Income-tax Officer to accept a statement of account which is not prepared according to any recognised accounting practice.The Income-tax Act makes no provision with regard to the valuation of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading venture these profits have to be adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it is the duty of the Income-tax Officer to find out what profits the business has made according to true accountancy practice, in the light of the system adopted, and thereafter to make the requisite adjustments, and even appropriate modification of the rule suggested by Fletcher-Moulton, L. J., to ascertain the taxable profits. It is true as observed by Lord Buckmaster in NavalColliery Co. Ltd. v. Commissioner of Inland Revenue, (1928) 12 Tax Cas 1017that the principle of determining the profits of the trade by valuing everything at the beginning and the end of the accounting period and by finding the difference may not be universally applicable in all cases, and needs material modification. The formula suggested in the Spanish Prospecting Co. case, 1911-1 Ch 92 was sought to be applied to a case in which Excess Profits duty was assessed. The assessee a mining company was unable to work its colliery on account of a strike. The assessee sought to introduce into its account which normally ended on June 30, 1921, the estimated expenses for repairing the damage (which though arising in the account period was restored later) on the plea that the expenses were in the nature of liability of business and properly debitable before they were actually incurred. The House of Lords rejected that contention. It was in this context that Lord Buckmaster observed that the accountancy rules applicable to wise and prudent trading could not be used in connection with the working of a mining lease.20. These observations do not affect the true character of the profits of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that in the case of a trading venture, you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an outgoing for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account.21. There is no warrant in this case for assuming that the Revenue authorities and the Tribunal had sought to displace the method of accountancy adopted by the assessee. By applying the proviso to S. 13 they made the computation upon the basis and in the manner in which in their opinion profits would be properly deduced. That they were entitled to do. We are, therefore, of the view that the High Court was in error in holding that because the assessee had maintained his account in the cash system it was not open to the Income-tax Officer to add to the receipts from the business the value of the stock-in-trade at the end of the year for the purpose of properly deducing the profits of the business for the year inis difficult to appreciate how any question about the regularity of the proceedings of theOfficer by the adoption of the mercantile system of accounting and by the application of the proviso to S. 13 of theAct arose from the order of the Tribunal. The High Court has under theAct power to call upon the Appellate Tribunal to state a case, only if the High Court is not satisfied about the correctness of the decision of the Tribunal that no question of law arises from the order of the Tribunal. The grounds of appeal filed before the Tribunal and before the Appellate Assistant Commissioner make it abundantly clear that the question as to the applicability of the proviso to S. 13 to the profits disclosed by the respondent firm was never challenged. Nor can it be said that the Tribunal "forced the x x x firm to adopt for the purpose of computation of its profits" a system of accounting other than the one adopted by the firm. In the title of the order by theOfficer it was recited that the method of accounting adopted by the firm was "mercantile", but that does not amount to saying that he proposed to compute the income on the basis that the accounts should be rewritten on the mercantilewe do not propose to dispose of this appeal on the limited ground that the question as framed did not arise out of the order of the Tribunal and need not be answered. The grounds given by the High Court in support of their answer to the question referred raise a matter of principle of some importance in the computation of income of an assessee carrying on a trading venture with the aid of a wasting asset, and we have heard elaborate arguments advanced by counsel at the Bar and we deem it necessary to express our opinion on the questionsis true that in that case Fletcher Moulton, L. J., made the observations not in dealing with a profit and loss account in a case relating to taxation, but with aof a company intended to show the actual financial condition of a business at the end of a year. The observations however do show that in ascertaining profits what may be regarded as normalpractice has to be observed. Whether in the case of trading in special classes of assets appropriate adjustments may have to be made is beside the point. | 1 | 5,877 | 1,643 | ### Instruction:
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earn those receipts. In the second place the account of profit and loss to be made up for the purpose of ascertaining that difference must be framed consistently with the ordinary principles of commercial accounting, so far as applicable, and in conformity with the rules of Income-tax Act, or of that Act as modified by the provisions and schedules of the Acts regulating Excess Profits Duty, as the case may be. For example, the ordinary principles of commercial accounting require that in the profit and loss account of a merchants or manufacturers business the value of the stock-in-trade at the beginning and at the end of the period covered by the account should be entered at cost or market price, whichever is the lower; although there is nothing about this in the taxing statutes."Similarly in Commissioner of Income-tax and Excess Profits Tax, Madras v. M/s. Chari and Ram Madura, 1949-17 ITR 1 : (AIR 1949 Mad 580 ) Rajamannar C. J., observed that stock-in-trade in hand is an essential item in the computation of the profits for a period.18. "Profits" as observed by Fletcher Moultion, L. J., in the Spanish Prospecting Co. Ltd., In re 1911-1 Ch. 92"implies a comparison between the state of a business at two specific dates usually separated by an interval of a year. The fundamental meaning is the amount of gains made by the business during the year. This can only be a ascertained by a comparison of the assets of the business at the two dates."We start therefore with this fundamental definition of profits, namely, if the total assets of the business at the two dates be compared, the increase which they show at the later date as compared with the earlier date x x x x x x x represents in strictness the profits of the business during the period in question."It is true that in that case Fletcher Moulton, L. J., made the observations not in dealing with a profit and loss account in a case relating to taxation, but with a balance-sheet of a company intended to show the actual financial condition of a business at the end of a year. The observations however do show that in ascertaining profits what may be regarded as normal book-keeping practice has to be observed. Whether in the case of trading in special classes of assets appropriate adjustments may have to be made is beside the point.19. The Income-tax Act makes no provision with regard to the valuation of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading venture these profits have to be adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it is the duty of the Income-tax Officer to find out what profits the business has made according to true accountancy practice, in the light of the system adopted, and thereafter to make the requisite adjustments, and even appropriate modification of the rule suggested by Fletcher-Moulton, L. J., to ascertain the taxable profits. It is true as observed by Lord Buckmaster in Naval Colliery Co. Ltd. v. Commissioner of Inland Revenue, (1928) 12 Tax Cas 1017 that the principle of determining the profits of the trade by valuing everything at the beginning and the end of the accounting period and by finding the difference may not be universally applicable in all cases, and needs material modification. The formula suggested in the Spanish Prospecting Co. case, 1911-1 Ch 92 was sought to be applied to a case in which Excess Profits duty was assessed. The assessee a mining company was unable to work its colliery on account of a strike. The assessee sought to introduce into its account which normally ended on June 30, 1921, the estimated expenses for repairing the damage (which though arising in the account period was restored later) on the plea that the expenses were in the nature of liability of business and properly debitable before they were actually incurred. The House of Lords rejected that contention. It was in this context that Lord Buckmaster observed that the accountancy rules applicable to wise and prudent trading could not be used in connection with the working of a mining lease.20. These observations do not affect the true character of the profits of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that in the case of a trading venture, you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an outgoing for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account.21. There is no warrant in this case for assuming that the Revenue authorities and the Tribunal had sought to displace the method of accountancy adopted by the assessee. By applying the proviso to S. 13 they made the computation upon the basis and in the manner in which in their opinion profits would be properly deduced. That they were entitled to do. We are, therefore, of the view that the High Court was in error in holding that because the assessee had maintained his account in the cash system it was not open to the Income-tax Officer to add to the receipts from the business the value of the stock-in-trade at the end of the year for the purpose of properly deducing the profits of the business for the year in question.22
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any recognised accounting practice.The Income-tax Act makes no provision with regard to the valuation of stock. It charges for payment of tax the income, profits and gains which have to be computed in the manner provided by the Income-tax Act. In the case of a trading venture these profits have to be adjusted in the light of the provisions of the Income-tax Act permitting allowances prescribed thereby. For that purpose it is the duty of the Income-tax Officer to find out what profits the business has made according to true accountancy practice, in the light of the system adopted, and thereafter to make the requisite adjustments, and even appropriate modification of the rule suggested by Fletcher-Moulton, L. J., to ascertain the taxable profits. It is true as observed by Lord Buckmaster in NavalColliery Co. Ltd. v. Commissioner of Inland Revenue, (1928) 12 Tax Cas 1017that the principle of determining the profits of the trade by valuing everything at the beginning and the end of the accounting period and by finding the difference may not be universally applicable in all cases, and needs material modification. The formula suggested in the Spanish Prospecting Co. case, 1911-1 Ch 92 was sought to be applied to a case in which Excess Profits duty was assessed. The assessee a mining company was unable to work its colliery on account of a strike. The assessee sought to introduce into its account which normally ended on June 30, 1921, the estimated expenses for repairing the damage (which though arising in the account period was restored later) on the plea that the expenses were in the nature of liability of business and properly debitable before they were actually incurred. The House of Lords rejected that contention. It was in this context that Lord Buckmaster observed that the accountancy rules applicable to wise and prudent trading could not be used in connection with the working of a mining lease.20. These observations do not affect the true character of the profits of a business. Adjustments may have to be made in the principle having regard to the special character of the assets, the nature of the business and the appropriate allowances permitted, in order to arrive at the taxable profits. They do not support the proposition that in the case of a trading venture, you can arrive at the true profits of a year by ignoring altogether the valuation of the stock-in-trade at the end of the year, while debiting its value at the commencement of the year as an outgoing for determination of the profits by ignoring the valuation of the stock at the end of the year and debiting the value of the assets at the commencement of the year would not give a true picture of the profit for the year of account.21. There is no warrant in this case for assuming that the Revenue authorities and the Tribunal had sought to displace the method of accountancy adopted by the assessee. By applying the proviso to S. 13 they made the computation upon the basis and in the manner in which in their opinion profits would be properly deduced. That they were entitled to do. We are, therefore, of the view that the High Court was in error in holding that because the assessee had maintained his account in the cash system it was not open to the Income-tax Officer to add to the receipts from the business the value of the stock-in-trade at the end of the year for the purpose of properly deducing the profits of the business for the year inis difficult to appreciate how any question about the regularity of the proceedings of theOfficer by the adoption of the mercantile system of accounting and by the application of the proviso to S. 13 of theAct arose from the order of the Tribunal. The High Court has under theAct power to call upon the Appellate Tribunal to state a case, only if the High Court is not satisfied about the correctness of the decision of the Tribunal that no question of law arises from the order of the Tribunal. The grounds of appeal filed before the Tribunal and before the Appellate Assistant Commissioner make it abundantly clear that the question as to the applicability of the proviso to S. 13 to the profits disclosed by the respondent firm was never challenged. Nor can it be said that the Tribunal "forced the x x x firm to adopt for the purpose of computation of its profits" a system of accounting other than the one adopted by the firm. In the title of the order by theOfficer it was recited that the method of accounting adopted by the firm was "mercantile", but that does not amount to saying that he proposed to compute the income on the basis that the accounts should be rewritten on the mercantilewe do not propose to dispose of this appeal on the limited ground that the question as framed did not arise out of the order of the Tribunal and need not be answered. The grounds given by the High Court in support of their answer to the question referred raise a matter of principle of some importance in the computation of income of an assessee carrying on a trading venture with the aid of a wasting asset, and we have heard elaborate arguments advanced by counsel at the Bar and we deem it necessary to express our opinion on the questionsis true that in that case Fletcher Moulton, L. J., made the observations not in dealing with a profit and loss account in a case relating to taxation, but with aof a company intended to show the actual financial condition of a business at the end of a year. The observations however do show that in ascertaining profits what may be regarded as normalpractice has to be observed. Whether in the case of trading in special classes of assets appropriate adjustments may have to be made is beside the point.
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Indian Statistical Institute Vs. M/S Associated Builders And Ors | on the record is revoked no one can act for the appellant. It was represented on behalf of the appellant at the earliest opportunity that it had decided to change the Counsel and prayed for extension of time. The learned Judge ignored the plea of the appellant that from October 25, 1976 to January 21, 1977 the appellant could not obtain the original objections filed by Shri B. Singh and overlooked the fact that when the papers were obtained from Shri B. Singh on January 20, 1977 the objections were promptly refiled on January 21, 1977. 7. On the facts we are constrained to say that we are most unhappy at the unsympathetic attitude taken by the High Court. The appellant was totally helpless and could not have refiled the memorandum of objections before January 21, 1977 in the circumstances in which it found itself. Further, the learned Judge did not even take notice of the fact that the petition for condonation of delay was pending and before that was disposed of the memorandum of objections cannot be properly refiled. 8. Regarding the conduct of Shri B. Singh the Counsel who was engaged by the appellant we feel the less said the better. The facts disclose that he was paid Rs. 3, 000. He filed the objections without affixing any stamp, which does not appear to be due to oversight, and when they were returned for rectifying defects, he made a demand for Rs. 15, 000 which is unconscionable. The subsequent conduct in not making the papers available cannot be innocently explained. We feel that Shri B. Singh has acted in a most unbecoming manner in the discharge of his duties as a member of the noble profession to which he belongs. We refrain from issuing any notice or calling upon him to explain as he is not under our disciplinary control. We direct that a copy of the judgment be sent to the All India Bar Council for taking such action as they may deem fit.9. On the facts disclosed we feel sufficient grounds are made out for condoning the delay in filing the objections. The two defects that were pointed out were : (i) the objections were not properly stamped and (ii) the verification was not dated. So far as the deficiency in stamps is concerned, under Section 149, Civil Procedure Code, the Court has ample jurisdiction to allow the person by whom such fee is payable to pay such Court fees at any stage. The defect in not affixing the date of the verification is not a material one to be taken serious note of. In the circumstances, it cannot be said that objections were not filed within time or that because they were not properly stamped the objections could not be taken as having been filed at all. Therefore, in our view, there had not been any delay in preferring the objections. The delay, if any, was in complying with the directions of the Registrar to rectify the defects and refiling the objections. The delay, as we have pointed out earlier, is not due to any want of care on the part of the appellant but due to circumstances beyond its control. 10. The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in re-presentation of the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re- presented. 11. In a recent judgment of this Court delivered on August 3, 1977 in Mahant Bikram Dass v. Financial Commissioner (1977 4 SCC 69 ), it is pointed out that the petition under Section 5 of the Limitation Act seeking to condone the delay in preferring an appeal is different from a petition for excusing the delay in re-presentation. 12. Even in cases where there has been delay in filing of an appeal or objection petition within the time prescribed when the delay is not due to want of bona fides by the petitioner and is due to the party having acted in a particular manner on the wrong advice given by his legal adviser, he cannot be held guilty of negligence so as to disentitle him to plead sufficient cause under Section 5 of the Limitation Act. (State of West Bengal v. Administrator, Howrah Municipality (1972 2 SCR 874 : 1972 1 SCC 366 )). 13. Equally when the petition is not properly stamped the Court has ample powers to extend the time for affixing proper Court-fee. Section 149 of the Code of Civil procedure confers ample power on the High Court to exercise its powers in order to do justice to a litigant where the failure is not due to any fault of the litigant. (Mahanth Ram Das v. Ganga Das (1961 3 SCR 763 : AIR 1961 SC 882 )). | 0[ds]6. The reasons given by the High Court are unsound and totally unconvincing. We feel that the petition discloses sufficient cause for condonation of the delay. The High Court found Shri B. Singh "may have acted without care or attention of the interest of his client or may have behaved recklessly, but nevertheless he was negligent". We are unable to perceive how the appellant was negligent. Even before the notice was received from the Registry on August 21, 1976 the appellant requested Shri B. Singh to file the objections within the time allowed. On the basis of the threat demanding fees the appellant promised to pay Shri Singh Rs. 3, 000 which was admittedly paid. By another letter the appellant undertook to pay Shri Singh according to schedule of fees by first week of October, 1976. The objections were filed on September 29, 1976 i.e. within time but no stamps were fixed to the objections and the date of verification was not entered. This intimation was given by Shri Singh on October 13, 1976 a day after the objections were returned by the office. Shri B. Singh wrote to the appellant informing him of the return, the necessity for removing the objections and refiling the objections and threatening that if the fees were not paid the matter would be held up. By the letter dated October 21, 1976 Shri Singh demanded Rs. 15, 000. At the earliest opportunity, that is when the matter came up before the Deputy Registrar the appellant prayed for time for filing objections stating that it had decided to change its advocate. On October 29, 1976 Shri B. Singh again wrote stating that though it had been repeatedly made clear that objections would be filed only after receiving full payments, he had filed objections in time on September 29, 1976. The learned Judge found that though the material for drafting objections for setting aside the award was available either in the records of the Court or in the record of the appellant, there is no explanation for not filing objections till January 21, 1977. The lower Court ignored the fact that before the vakalatnama of the Counsel on the record is revoked no one can act for the appellant. It was represented on behalf of the appellant at the earliest opportunity that it had decided to change the Counsel and prayed for extension of time. The learned Judge ignored the plea of the appellant that from October 25, 1976 to January 21, 1977 the appellant could not obtain the original objections filed by Shri B. Singh and overlooked the fact that when the papers were obtained from Shri B. Singh on January 20, 1977 the objections were promptly refiled on January 21,On the facts we are constrained to say that we are most unhappy at the unsympathetic attitude taken by the High Court. The appellant was totally helpless and could not have refiled the memorandum of objections before January 21, 1977 in the circumstances in which it found itself. Further, the learned Judge did not even take notice of the fact that the petition for condonation of delay was pending and before that was disposed of the memorandum of objections cannot be properlyRegarding the conduct of Shri B. Singh the Counsel who was engaged by the appellant we feel the less said the better. The facts disclose that he was paid Rs. 3, 000. He filed the objections without affixing any stamp, which does not appear to be due to oversight, and when they were returned for rectifying defects, he made a demand for Rs. 15, 000 which is unconscionable. The subsequent conduct in not making the papers available cannot be innocently explained. We feel that Shri B. Singh has acted in a most unbecoming manner in the discharge of his duties as a member of the noble profession to which he belongs. We refrain from issuing any notice or calling upon him to explain as he is not under our disciplinary control. We direct that a copy of the judgment be sent to the All India Bar Council for taking such action as they may deemOn the facts disclosed we feel sufficient grounds are made out for condoning the delay in filing the objections. The two defects that were pointed out were : (i) the objections were not properly stamped and (ii) the verification was not dated. So far as the deficiency in stamps is concerned, under Section 149, Civil Procedure Code, the Court has ample jurisdiction to allow the person by whom such fee is payable to pay such Court fees at any stage. The defect in not affixing the date of the verification is not a material one to be taken serious note of. In the circumstances, it cannot be said that objections were not filed within time or that because they were not properly stamped the objections could not be taken as having been filed at all. Therefore, in our view, there had not been any delay in preferring the objections. The delay, if any, was in complying with the directions of the Registrar to rectify the defects and refiling the objections. The delay, as we have pointed out earlier, is not due to any want of care on the part of the appellant but due to circumstances beyond itsThe High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in re-presentation of the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re-The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was inof the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re | 0 | 3,508 | 1,447 | ### Instruction:
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on the record is revoked no one can act for the appellant. It was represented on behalf of the appellant at the earliest opportunity that it had decided to change the Counsel and prayed for extension of time. The learned Judge ignored the plea of the appellant that from October 25, 1976 to January 21, 1977 the appellant could not obtain the original objections filed by Shri B. Singh and overlooked the fact that when the papers were obtained from Shri B. Singh on January 20, 1977 the objections were promptly refiled on January 21, 1977. 7. On the facts we are constrained to say that we are most unhappy at the unsympathetic attitude taken by the High Court. The appellant was totally helpless and could not have refiled the memorandum of objections before January 21, 1977 in the circumstances in which it found itself. Further, the learned Judge did not even take notice of the fact that the petition for condonation of delay was pending and before that was disposed of the memorandum of objections cannot be properly refiled. 8. Regarding the conduct of Shri B. Singh the Counsel who was engaged by the appellant we feel the less said the better. The facts disclose that he was paid Rs. 3, 000. He filed the objections without affixing any stamp, which does not appear to be due to oversight, and when they were returned for rectifying defects, he made a demand for Rs. 15, 000 which is unconscionable. The subsequent conduct in not making the papers available cannot be innocently explained. We feel that Shri B. Singh has acted in a most unbecoming manner in the discharge of his duties as a member of the noble profession to which he belongs. We refrain from issuing any notice or calling upon him to explain as he is not under our disciplinary control. We direct that a copy of the judgment be sent to the All India Bar Council for taking such action as they may deem fit.9. On the facts disclosed we feel sufficient grounds are made out for condoning the delay in filing the objections. The two defects that were pointed out were : (i) the objections were not properly stamped and (ii) the verification was not dated. So far as the deficiency in stamps is concerned, under Section 149, Civil Procedure Code, the Court has ample jurisdiction to allow the person by whom such fee is payable to pay such Court fees at any stage. The defect in not affixing the date of the verification is not a material one to be taken serious note of. In the circumstances, it cannot be said that objections were not filed within time or that because they were not properly stamped the objections could not be taken as having been filed at all. Therefore, in our view, there had not been any delay in preferring the objections. The delay, if any, was in complying with the directions of the Registrar to rectify the defects and refiling the objections. The delay, as we have pointed out earlier, is not due to any want of care on the part of the appellant but due to circumstances beyond its control. 10. The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in re-presentation of the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re- presented. 11. In a recent judgment of this Court delivered on August 3, 1977 in Mahant Bikram Dass v. Financial Commissioner (1977 4 SCC 69 ), it is pointed out that the petition under Section 5 of the Limitation Act seeking to condone the delay in preferring an appeal is different from a petition for excusing the delay in re-presentation. 12. Even in cases where there has been delay in filing of an appeal or objection petition within the time prescribed when the delay is not due to want of bona fides by the petitioner and is due to the party having acted in a particular manner on the wrong advice given by his legal adviser, he cannot be held guilty of negligence so as to disentitle him to plead sufficient cause under Section 5 of the Limitation Act. (State of West Bengal v. Administrator, Howrah Municipality (1972 2 SCR 874 : 1972 1 SCC 366 )). 13. Equally when the petition is not properly stamped the Court has ample powers to extend the time for affixing proper Court-fee. Section 149 of the Code of Civil procedure confers ample power on the High Court to exercise its powers in order to do justice to a litigant where the failure is not due to any fault of the litigant. (Mahanth Ram Das v. Ganga Das (1961 3 SCR 763 : AIR 1961 SC 882 )).
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filing objections till January 21, 1977. The lower Court ignored the fact that before the vakalatnama of the Counsel on the record is revoked no one can act for the appellant. It was represented on behalf of the appellant at the earliest opportunity that it had decided to change the Counsel and prayed for extension of time. The learned Judge ignored the plea of the appellant that from October 25, 1976 to January 21, 1977 the appellant could not obtain the original objections filed by Shri B. Singh and overlooked the fact that when the papers were obtained from Shri B. Singh on January 20, 1977 the objections were promptly refiled on January 21,On the facts we are constrained to say that we are most unhappy at the unsympathetic attitude taken by the High Court. The appellant was totally helpless and could not have refiled the memorandum of objections before January 21, 1977 in the circumstances in which it found itself. Further, the learned Judge did not even take notice of the fact that the petition for condonation of delay was pending and before that was disposed of the memorandum of objections cannot be properlyRegarding the conduct of Shri B. Singh the Counsel who was engaged by the appellant we feel the less said the better. The facts disclose that he was paid Rs. 3, 000. He filed the objections without affixing any stamp, which does not appear to be due to oversight, and when they were returned for rectifying defects, he made a demand for Rs. 15, 000 which is unconscionable. The subsequent conduct in not making the papers available cannot be innocently explained. We feel that Shri B. Singh has acted in a most unbecoming manner in the discharge of his duties as a member of the noble profession to which he belongs. We refrain from issuing any notice or calling upon him to explain as he is not under our disciplinary control. We direct that a copy of the judgment be sent to the All India Bar Council for taking such action as they may deemOn the facts disclosed we feel sufficient grounds are made out for condoning the delay in filing the objections. The two defects that were pointed out were : (i) the objections were not properly stamped and (ii) the verification was not dated. So far as the deficiency in stamps is concerned, under Section 149, Civil Procedure Code, the Court has ample jurisdiction to allow the person by whom such fee is payable to pay such Court fees at any stage. The defect in not affixing the date of the verification is not a material one to be taken serious note of. In the circumstances, it cannot be said that objections were not filed within time or that because they were not properly stamped the objections could not be taken as having been filed at all. Therefore, in our view, there had not been any delay in preferring the objections. The delay, if any, was in complying with the directions of the Registrar to rectify the defects and refiling the objections. The delay, as we have pointed out earlier, is not due to any want of care on the part of the appellant but due to circumstances beyond itsThe High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was in re-presentation of the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re-The High Court was in error in holding that there was any delay in filing the objections for setting aside the award. The time prescribed by the Limitation Act for filing of the objections is one month from the date of the service of the notice. It is common ground that the objections were filed within the period prescribed by the Limitation Act though defectively. The delay, if any, was inof the objection petition after rectifying the defects. Section 5 of the limitation Act provides for extension of the prescribed period of limitation if the petitioner satisfies the Court that he had sufficient cause for not preferring the objections within that period. When there is no delay in presenting the objection petition Section 5 of the Limitation Act has no application and the delay in representation is not subject to the rigorous tests which are usually applied in excusing the delay in a petition under Section 5 of the Limitation Act. The application filed before the lower Court for condonation of the delay in preferring the objections and the order of the Court declining to condone the delay are all due to misunderstanding of the provisions of the Civil Procedure Code. As we have already pointed out in the return the Registrar did not even specify the time within which the petition will have to be re
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M/S ACHAL INDUSTRIES Vs. STATE OF KARNATAKA | in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying object is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liability sought to be imposed must be pertinent to that territorial connection: State of Bombay v.R.M.D. Chamarbaugwala [AIR 1957 SC 699 ], Tata Iron & Steel Co. Ltd. v. State of Bihar[(1958) SCR 1355] and International Tourist Corporation v. State of Haryana [(1981) 2 SCC 318] . The gross turnover of a dealer is taken into account in sub-section (1) of Section 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. 11. This Court also noticed the economic superiority principle for the purpose of levy of turnover tax while holding that the interpretation of statute would not depend upon contingency. It is trite law which the Court would ordinary take recourse to golden rule of strict interpretation while interpreting taxing statutes. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation and this is what has been considered by this Court in Commissioner of Customs(Import), Mumbai Vs. Dilip Kumar and Company and Others 2018(9) SCC 1 in para 24 and 34 as under:- "24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocents might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because the State cannot at their whims and fancies burden the citizens without authority of law. In other words, when the competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the legislature. 34. The passages extracted above, were quoted with approval by this Court in at least two decisions being CIT v. Kasturi and Sons Ltd. (1999) 3 SCC 346 and State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 (hereinafter referred to as ?Kesoram Industries case?, for brevity). In the later decision, a Bench of five Judges, after citing the above passage from Justice G.P. Singhs treatise, summed up the following principles applicable to the interpretation of a taxing statute: ?(i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of the legislatures failure to express itself clearly.? 12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act. 13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection. 14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible. 15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case. 16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration. | 0[ds]12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration. | 0 | 3,366 | 391 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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in the course of import into, or export of goods out of the territory of India, but is only for the purpose of classifying dealers within the State and to identify the class of dealers liable to pay such surcharge. The underlying object is to classify dealers into those who are economically superior and those who are not. That is to say, the imposition of surcharge is on those who have the capacity to bear the burden of additional tax. There is sufficient territorial nexus between the persons sought to be charged and the State seeking to tax them. Sufficiency of territorial nexus involves a consideration of two elements viz.: (a) the connection must be real and not illusory, and (b) the liability sought to be imposed must be pertinent to that territorial connection: State of Bombay v.R.M.D. Chamarbaugwala [AIR 1957 SC 699 ], Tata Iron & Steel Co. Ltd. v. State of Bihar[(1958) SCR 1355] and International Tourist Corporation v. State of Haryana [(1981) 2 SCC 318] . The gross turnover of a dealer is taken into account in sub-section (1) of Section 5 of the Act for the purpose of identifying the class of dealers liable to pay a surcharge not on the gross turnover but on the tax payable by them. 11. This Court also noticed the economic superiority principle for the purpose of levy of turnover tax while holding that the interpretation of statute would not depend upon contingency. It is trite law which the Court would ordinary take recourse to golden rule of strict interpretation while interpreting taxing statutes. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation and this is what has been considered by this Court in Commissioner of Customs(Import), Mumbai Vs. Dilip Kumar and Company and Others 2018(9) SCC 1 in para 24 and 34 as under:- "24. In construing penal statutes and taxation statutes, the Court has to apply strict rule of interpretation. The penal statute which tends to deprive a person of right to life and liberty has to be given strict interpretation or else many innocents might become victims of discretionary decision-making. Insofar as taxation statutes are concerned, Article 265 of the Constitution prohibits the State from extracting tax from the citizens without authority of law. It is axiomatic that taxation statute has to be interpreted strictly because the State cannot at their whims and fancies burden the citizens without authority of law. In other words, when the competent Legislature mandates taxing certain persons/certain objects in certain circumstances, it cannot be expanded/interpreted to include those, which were not intended by the legislature. 34. The passages extracted above, were quoted with approval by this Court in at least two decisions being CIT v. Kasturi and Sons Ltd. (1999) 3 SCC 346 and State of W.B. v. Kesoram Industries Ltd. (2004) 10 SCC 201 (hereinafter referred to as ?Kesoram Industries case?, for brevity). In the later decision, a Bench of five Judges, after citing the above passage from Justice G.P. Singhs treatise, summed up the following principles applicable to the interpretation of a taxing statute: ?(i) In interpreting a taxing statute, equitable considerations are entirely out of place. A taxing statute cannot be interpreted on any presumption or assumption. A taxing statute has to be interpreted in the light of what is clearly expressed; it cannot imply anything which is not expressed; it cannot import provisions in the statute so as to supply any deficiency; (ii) Before taxing any person, it must be shown that he falls within the ambit of the charging section by clear words used in the section; and (iii) If the words are ambiguous and open to two interpretations, the benefit of interpretation is given to the subject and there is nothing unjust in a taxpayer escaping if the letter of the law fails to catch him on account of the legislatures failure to express itself clearly.? 12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act. 13. The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection. 14. The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible. 15. The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case. 16. In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration.
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12. In the instant scheme of the Act of which reference has been made in detail, the expression ‘total turnover? has been referred to for the purpose of identification/classification of dealers for prescribing various rates/slabs of tax leviable to the dealer and read with first and second proviso to Section 6-B(1), this makes the intention of the legislature clear and unambiguous that except the deductions provided under the first proviso to Section 6-B(1) nothing else can be deducted from the total turnover as defined under Section 2(u-2) for the purpose of levy of turnover tax under Section 6-B of the Act.The submission of learned counsel for the appellant that the ‘total turnover? in Section 6-B(1) is to be read as ‘taxable turnover? and the determination of the rate of the turnover tax is to be ascertained on the ‘taxable turnover? on the face of it is unsustainable and deserves outright rejection.The judgments on which learned counsel has placed reliance in Indra Das Vs. State of Assam (supra) is in context of the fundamental rights in reference to the provisions of Terrorists & Disruptive Activities (Prevention) Act, 1987, and it was observed that the endeavour of the court should be to try to sustain the validity of the statute by reading it down as possible.The judgment in Subramanian Swamy and others Vs. Raju through Member, Juvenile Justice Board and Another 2014(8) SCC 390 was in reference to a challenge to the validity of the Juvenile Justice(Care and Protection of Children) Act, 2000. Though the validity was repelled by this Court, the doctrine of ‘reading down? was discussed. It was held to be inapplicable in the facts of the said case.In Rakesh Kumar Paul Vs. State of Assam(supra), this Court has examined the interpretation of Section 167(2) of the Code of Criminal Procedure, 1973 which has a reference to the liberty of a citizen. Either of the cases referred to may not have any remote relevance to the question which has come up before us for consideration.
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Shambu Nath Goyal Vs. Bank Of Baroda And Others | service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are dispute or difference. What is the connotation of these two words. In Beetham v. Trinidad Cement Ltd.([1960] 1 All E.R. 244 at 249.). Lord Denning while examining the definition of expression Trade dispute in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:"by definition a trade dispute exists whenever a difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening".5. Thus the term industrial dispute connotes a real and Substantial , difference having some element of persistency and continuity till resolved and likely if no t adjusted to endanger the industrial peace of the Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tent amount to re-writing the section.The reference in the case before us was made under s. 10(1) which provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by s. 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under s. 1 0 ( 1 ). But in making a reference under s. 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the, less administrative in character. The Court cannot therefore, canvass the order of reference closely to see, if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on, which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C. P. Sarthy(A.I.R. 1953 S.C. 53.). The Tribunal, however, referred to the decision of this Court in Sindhi Resettlement Corporation Ltd. v. Industrial Tribunal([1968] L.L.J. 843.), in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C. P. Sarthys case (Supra). In the case before us, it can be shown from the record accepted by t he Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the Appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey. That appeal itself is a representation questioning the decision of the Management dismissing the workmen from service and praying for reinstatement. There is further a fact that when the Union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion that there exists a dispute concerning workman S. N. Goyal and it was an industrial dispute because there was demand for rein- statement and a reference was made such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did. not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent.6. | 1[ds]A bare perusal of the definition would show that where there is a dispute or difference between the parties contemplated by the definition and the disputes or difference is connected with the employment or non-employment or the terms of employment or, with the conditions of labour of any person there comes into existence an industrial dispute. The Act nowhere contemplates that the dispute Would come into existence in any particular, specific or prescribed manner. For coming into existence of an industrial dispute a written demand is not a sine , qua non, unless of course in the case of public utility service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are dispute or difference. What is the connotation of these two words. InBeetham v. Trinidad Cement Ltd.([1960] 1 All E.R. 244 at 249.).Lord Denning while examining the definition of expression Trade dispute in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidaddefinition a trade dispute exists whenever a difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for anthe term industrial dispute connotes a real and Substantial , difference having some element of persistency and continuity till resolved and likely if no t adjusted to endanger the industrial peace of the Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tent amount to re-writing the section.The reference in the case before us was made under s. 10(1) which provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by s. 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under s. 1 0 ( 1 ). But in making a reference under s. 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the, less administrative in character. The Court cannot therefore, canvass the order of reference closely to see, if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on, which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C. P. Sarthy(A.I.R. 1953 S.C. 53.). The Tribunal, however, referred to the decision of this Court in Sindhi Resettlement Corporation Ltd. v. Industrial Tribunal([1968] L.L.J. 843.), in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C. P. Sarthys case (Supra). In the case before us, it can be shown from the record accepted by t he Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the Appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey. That appeal itself is a representation questioning the decision of the Management dismissing the workmen from service and praying for reinstatement. There is further a fact that when the Union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion that there exists a dispute concerning workman S. N. Goyal and it was an industrial dispute because there was demand for rein- statement and a reference was made such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did. not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent. | 1 | 1,646 | 1,200 | ### 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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service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are dispute or difference. What is the connotation of these two words. In Beetham v. Trinidad Cement Ltd.([1960] 1 All E.R. 244 at 249.). Lord Denning while examining the definition of expression Trade dispute in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidad observed:"by definition a trade dispute exists whenever a difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for an opening".5. Thus the term industrial dispute connotes a real and Substantial , difference having some element of persistency and continuity till resolved and likely if no t adjusted to endanger the industrial peace of the Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tent amount to re-writing the section.The reference in the case before us was made under s. 10(1) which provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by s. 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under s. 1 0 ( 1 ). But in making a reference under s. 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the, less administrative in character. The Court cannot therefore, canvass the order of reference closely to see, if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on, which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C. P. Sarthy(A.I.R. 1953 S.C. 53.). The Tribunal, however, referred to the decision of this Court in Sindhi Resettlement Corporation Ltd. v. Industrial Tribunal([1968] L.L.J. 843.), in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C. P. Sarthys case (Supra). In the case before us, it can be shown from the record accepted by t he Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the Appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey. That appeal itself is a representation questioning the decision of the Management dismissing the workmen from service and praying for reinstatement. There is further a fact that when the Union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion that there exists a dispute concerning workman S. N. Goyal and it was an industrial dispute because there was demand for rein- statement and a reference was made such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did. not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent.6.
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course in the case of public utility service, because s. 22 forbids going on strike without giving a strike notice. The key words in the definition of industrial dispute are dispute or difference. What is the connotation of these two words. InBeetham v. Trinidad Cement Ltd.([1960] 1 All E.R. 244 at 249.).Lord Denning while examining the definition of expression Trade dispute in s. 2(1) of Trade Disputes (Arbitration and Inquiry) Ordinance of Trinidaddefinition a trade dispute exists whenever a difference" exists and a difference can exist long before the parties become locked in a combat. It is not necessary that they should have come to blows. It is sufficient that they should be sparring for anthe term industrial dispute connotes a real and Substantial , difference having some element of persistency and continuity till resolved and likely if no t adjusted to endanger the industrial peace of the Undertaking or the community. When parties are at variance and the dispute or difference is connected with the employment, or non-employment or the terms of employment or with the conditions of labour there comes into existence an industrial dispute. To read into definition the requirement of written demand for bringing into existence an industrial dispute would tent amount to re-writing the section.The reference in the case before us was made under s. 10(1) which provides inter alia that where the appropriate government is of opinion that any industrial dispute exists or is apprehended it may at any time by order in writing refer the matter for adjudication as therein mentioned. The power conferred by s. 10(1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government, Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under s. 1 0 ( 1 ). But in making a reference under s. 10(1) the Government is doing an administrative act and the fact that it has to form an opinion as to the factual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the, less administrative in character. The Court cannot therefore, canvass the order of reference closely to see, if there was any material before the Government to support its conclusion, as if it was a judicial or quasi judicial determination. No doubt it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the Tribunal had no jurisdiction to make the award. But, if the dispute was an industrial dispute as defined in the Act, its factual existence and expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on, which it could have come to an affirmative conclusion of those matters, (vide Madras State v. C. P. Sarthy(A.I.R. 1953 S.C. 53.). The Tribunal, however, referred to the decision of this Court in Sindhi Resettlement Corporation Ltd. v. Industrial Tribunal([1968] L.L.J. 843.), in which this Court proceeded to ascertain whether there was in existence an industrial dispute at the date of reference, but the question whether in case of an apprehended dispute Government can make reference under S. 10(1) was not examined. But that apart the question whether an industrial dispute exists at the date of reference is a question of fact to be determined on the material placed before the Tribunal with the cautions enunciated in C. P. Sarthys case (Supra). In the case before us, it can be shown from the record accepted by t he Tribunal itself that there was in existence a dispute which was legitimately referred by the Government to the Industrial Tribunal for adjudication. Undoubtedly, it is for the Government to be satisfied about existence of the dispute and the Government does appear to be satisfied. However, it would be open to the party impugning the reference that there was no material before the Government, and it would be open to the Tribunal to examine the question, but that does not mean that it can sit in appeal over the decision of the Government and come to a conclusion that there was no material before the Government.In this case the Tribunal completely misdirected itself when it observed that no demand was made by the workman claiming reinstatement after dismissal. When the inquiry was held, it is an admitted position, that the workman appeared and claimed reinstatement. After his dismissal he preferred an appeal to the Appellate forum and contended that the order of dismissal was wrong, unsupported by evidence and in any event he should be reinstated in service. If that was not a demand for reinstatement addressed to employer what else would it convey. That appeal itself is a representation questioning the decision of the Management dismissing the workmen from service and praying for reinstatement. There is further a fact that when the Union approached the Conciliation Officer the Management appeared and contested the claim for reinstatement. There is thus unimpeachable evidence that the concerned workman persistently demanded reinstatement. If in this background the Government came to the conclusion that there exists a dispute concerning workman S. N. Goyal and it was an industrial dispute because there was demand for rein- statement and a reference was made such reference could hardly be rejected on the ground that there was no demand and the industrial dispute did. not come into existence. Therefore, the Tribunal was in error in rejecting the reference on the ground that the reference was incompetent.
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ASSET RECONSTRUCTION COMPANY (INDIA) LIMITED Vs. BISHAL JAISWAL & ANR | 11337 : (2017) 4 KLJ 80 , the Kerala High Court held: 7. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirement of law for a valid acknowledgement under Section 18 of the Act. We may recapitulate the words of Mr. Justice P. Subramonian Poti in Krishnan Assari v. Akilakerala Viswakarma Maha Sabha [1980 KLT 515 (DB)] and the following is the extract: 10. How far the balance sheets could be acted upon in deciding the claim of the appellant is the next question. The appellant relies on the balance sheets as acknowledgement of liability contemplated in S. 18 of the Limitation Act, 1963. Under S. 18 an acknowledgement of liability signed by the party against whom the right is claimed gives rise to a fresh period of limitation. Under Explanation (b) to the Section the word signed means signed either personally or by an agent duly authorised. A company being a corporate body acts through its representatives, the Managing Director and the Board of Directors. Under S. 210 of the Companies Act it is the statutory duty of the Board of Directors to lay before the Company at every annual general body meeting a balance sheet and a profit and loss account for the preceding financial year. S. 211 directs that the form and contents of the balance sheet should be as set out in Part I of Schedule VI. The said form stipulates for the details of the loans and advances and also of sundry creditors. The balance sheet should be approved by the Board of Directors, and thereafter authenticated by the Manager or the Secretary if any and not less than two directors one of whom should be the Managing Director. (See S. 215). The Act also provides for supply of copies of the balance sheet to the members before the company in general meeting. Going by the above provisions, a balance sheet is the statement of assets and liabilities of the company as at the end of the financial year, approved by the Board of Directors and authenticated in the manner provided by law. The persons who authenticate the document do so in their capacity as agents of the company. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknowledgement under S. 18 of the Limitation Act, even though the directors by authenticating the balance sheet merely discharge a statutory duty and may not have intended to make an acknowledgement. 31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held: 5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:— 7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point. 6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed. 32. In Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462 : (2020) 5 ALD 561, the High Court of Telangana held: 107. In several cases, various High Courts have held that an acknowledgement of liability in the balance sheet by a Company registered under the Companies Act, 1956 extends the period of limitation though it is not addressed to the creditor specifically. (Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, Bhajan Singh Samra v. Wimpy International Ltd., 2012 SCC OnLine Del 2939, Vijay Kumar Machinery and Electrical Stores v. Alaparthi Lakshmi Kanthamma, (1969) 74 ITR 224 (AP) , and Bengal Silk Mills Company, Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Company Limited, AIR 1952 Mad 1361). 108. Therefore it is not necessary that the acknowledgement of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case. 33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020. 34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also. 35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34. | 1[ds]A perusal of the above would show that considering that the Limitation Act applies only to courts, unless made statutorily applicable to tribunals, the Committee was of the view that such Act should be made to apply to the IBC as well, observing that though the IBC is not a debt recovery law, the trigger being default in payment of debt would render the exclusion of the law of limitation counter-intuitive. Thus, it was made clear that an application to the IBC should not amount to resurrection of time-barred debts which, in any other forum, would have been dismissed on the ground of limitation.7. From the above, it is clear that the principle of Section 9 of the Limitation Act is to be strictly adhered to, namely, that when time begins to run, it cannot be halted, except by a process known to law. One question that arises before this Court is whether Section 18 of the Limitation Act, which extends the period of limitation depending upon an acknowledgement of debt made in writing and signed by the corporate debtor, is also applicable under Section 238A, given the expression as far as may be governing the applicability of the Limitation Act to the IBC.8. The aforesaid question is no longer res integra as two recent judgments of this Court have applied the provisions of Section 14 and Section 18 of the Limitation Act to the IBC. Thus, in Sesh Nath Singh v. Baidyabati Sheoraphuli Co-operative Bank Ltd., Civil Appeal No. 9198 of 2019 (decided on 22.03.2021), after setting out the issues that arose in that case in paragraph 57, and after referring to Section 238A of IBC, held:66. Similarly under Section 18 of the Limitation Act, an acknowledgement of present subsisting liability, made in writing in respect of any right claimed by the opposite party and signed by the party against whom the right is claimed, has the effect of commencing of a fresh period of limitation, from the date on which the acknowledgement is signed. However, the acknowledgement must be made before the period of limitation expires.67. As observed above, Section 238A of the IBC makes the provisions of the Limitation Act, as far as may be, applicable to proceedings before the NCLT and the NCLAT. The IBC does not exclude the application of Section 6 or 14 or 18 or any other provision of the Limitation Act to proceedings under the IBC in the NCLT/NCLAT. All the provisions of the Limitation Act are applicable to proceedings in the NCLT/NCLAT, to the extent feasible.68. We see no reason why Section 14 or 18 of the Limitation Act, 1963 should not apply to proceeding under Section 7 or Section 9 of the IBC. Of course, Section 18 of the Limitation Act is not attracted in this case, since the impugned order of the NCLAT does not proceed on the basis of any acknowledgement.10. Given the aforesaid, it is not possible to accede to the arguments made by Shri Sinha that Section 18 of the Limitation Act cannot be made applicable by reason of the arguments put forth by him. As has been held in Ambika Prasad Mishra v. State of U.P., (1980) 3 SCC 719, every argumentative novelty does not undo a settled position of law. Krishna Iyer, J., speaking for a Bench of five learned Judges, stated thus:5. … But, after listening to the Marathon erudition from eminent counsel, a 13-Judge Bench of this Court upheld the vires of Article 31-A in unequivocal terms. That decision binds, on the simple score of stare decisis and the constitutional ground of Article 141. Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent. In this view, other submissions sparkling with creative ingenuity and presented with high pressure advocacy, cannot persuade us to reopen what was laid down for the guidance of the nation as a solemn proposition by the epic Fundamental Rights case [(1973) 4 SCC 225 : 1973 Supp SCR 1]. From Kameshwar Singh [AIR 1952 SC 252 : 1952 SCR 889 : 1952 SCJ 354 ] (1952) and Golak Nath [I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643 : (1967) 2 SCR 762 : (1967) 2 SCJ 486 ] (1967) through Kesavananda [(1973) 4 SCC 225 : 1973 Supp SCR 1] (1973) and Kanan Devan [Kanan Devan Hills Produce Co. Ltd. v. State of Kerala, (1973) 1 SCR 356 : (1972) 2 SCC 218 : AIR 1972 SC 2301 ] (1972) to Gwalior Rayons [State of Kerala v. Gwalior Rayon Silk Mfg. (Wvg). Co. Ltd.(1973) 2 SCC 713 : (1974) 1 SCR 671 ] (1976) and after Article 31-A has stood judicial scrutiny although, as stated earlier, we do not base the conclusion on Article 31-A. Even so, it is fundamental that the nations Constitution is not kept in constant uncertainty by judicial review every season because it paralyses, by perennial suspense, all legislative and administrative action on vital issues deterred by the brooding threat of forensic blow up. This, if permitted, may well be a kind of judicial destabilisation of State action too dangerous to be indulged in save where national crisis of great moment to the life, liberty and safety of this country and its millions are at stake, or the basic direction of the nation itself is in peril of a shake-up. It is surely wrong to prove Justice Roberts of the United States Supreme Court right when he said: [Smith v. Allwright, 321 US 649, 669, 670 (1944)]The reason for my concern is that the instant decision, overruling that announced about nine years ago, tends to bring adjudications of this tribunal into the same class as a restricted railroad ticket good for this day and train only…. It is regrettable that in an era marked by doubt and confusion, an era whose greatest need is steadfastness of thought and purpose, this Court which has been looked to as exhibiting consistency in adjudication, and a steadiness which would hold the balance even in the face of temporary ebbs and flows of opinion, should now itself become the breeder of fresh doubt and confusion in the public mind as to the stability of our institutions.12. In an illuminating discussion on the reach of Section 18 of the Limitation Act, including the reach of the Explanation to the said Section, this Court, in Khan Bahadur Shapoor Fredoom Mazda v. Durga Prasad, (1962) 1 SCR 140 [Shapoor Fredoom Mazda], after referring to Section 19 of the Limitation Act, 1908, which corresponds to Section 18 of the 1963 Act, held:It is thus clear that acknowledgement as prescribed by Section 19 merely renews debt; it does not create a new right of action. It is a mere acknowledgement of the liability in respect of the right in question; it need not be accompanied by a promise to pay either expressly or even by implication. The statement on which a plea of acknowledgement is based must relate to a present subsisting liability though the exact nature or the specific character of the said liability may not be indicated in words. Words used in the acknowledgement must, however, indicate the existence of jural relationship between the parties such as that of debtor and creditor, and it must appear that the statement is made with the intention to admit such jural relationship. Such intention can be inferred by implication from the nature of the admission, and need not be expressed in words. If the statement is fairly clear then the intention to admit jural relationship may be implied from it. The admission in question need not be express but must be made in circumstances and in words from which the court can reasonably infer that the person making the admission intended to refer to a subsisting liability as at the date of the statement. In construing words used in the statements made in writing on which a plea of acknowledgement rests oral evidence has been expressly excluded but surrounding circumstances can always be considered. Stated generally courts lean in favour of a liberal construction of such statements though it does not mean that where no admission is made one should be inferred, or where a statement was made clearly without intending to admit the existence of jural relationship such intention could be fastened on the maker of the statement by an involved or far-fetched process of reasoning. Broadly stated that is the effect of the relevant provisions contained in Section 19, and there is really no substantial difference between the parties as to the true legal position in this matter.(at pages 144-145)15. Likewise, in a case concerning the dishonour of a cheque under Section 138 of the Negotiable Instruments Act, 1881, this Court, in A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642 [A.V. Murthy], held:5. … It is also pertinent to note that under sub-section (3) of Section 25 of the Indian Contract Act, 1872, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Moreover, in the instant case, the appellant has submitted before us that the respondent, in his balance sheet prepared for every year subsequent to the loan advanced by the appellant, had shown the amount as deposits from friends. A copy of the balance sheet as on 31-3-1997 is also produced before us. If the amount borrowed by the respondent is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. However, we do not express any final opinion on all these aspects, as these are matters to be agitated before the Magistrate by way of defence of the respondent.The judgment in A.V. Murthy (supra) was followed in S. Natarajan vs. Sama Dharman, Crl. A. No. 1524 of 2014 (decided on 15.07.2014) as follows:7. In this connection, we may usefully refer to a judgment of this Court in A.V. Murthy v. B.S. Nagabasavanna [A.V. Murthy v. B.S. Nagabasavanna, (2002) 2 SCC 642] where the accused had alleged that the cheque issued by him in favour of the complainant in respect of sum advanced to the accused by the complainant four years ago was dishonoured by the bank for the reasons account closed. The Magistrate had issued summons to the accused. The Sessions Court quashed the proceedings on the ground that the alleged debt was barred by limitation at the time of issuance of cheque and, therefore, there was no legally enforceable debt or liability against the accused under the Explanation to Section 138 of the NI Act and, therefore, the complaint was not maintainable. While dealing with the challenge to this order, this Court observed that Under Section 118 of the NI Act, there is a presumption that until the contrary is proved, every negotiable instrument was drawn for consideration. This Court further observed that Section 139 of the NI Act specifically notes that it shall be presumed unless the contrary is proved, that the holder of a cheque received the cheque of the nature referred to in Section 138 of the NI Act for discharge, in whole or in part, of any debt or other liability. This Court further observed that under Sub-section (3) of Section 25 of the Contract Act, a promise, made in writing and signed by the person to be charged therewith, or by his agent generally or specially authorized in that behalf, to pay wholly or in part a debt of which the creditor might have enforced payment but for the law for the limitation of suits, is a valid contract. Referring to the facts before it, this Court observed that the complainant therein had submitted his balance sheet, prepared for every year subsequent to the loan advanced by the complainant and had shown the amount as deposits from friends. This Court noticed that the relevant balance sheet is also produced in the Court. This Court observed that if the amount borrowed by the accused therein is shown in the balance sheet, it may amount to acknowledgement and the creditor might have a fresh period of limitation from the date on which the acknowledgement was made. …16. An exhaustive judgment of the Calcutta High Court in Bengal Silk Mills Co. v. Ismail Golam Hossain Ariff, 1961 SCC OnLine Cal 128 : AIR 1962 Cal 115 [Bengal Silk Mills] held that an acknowledgement of liability that is made in a balance sheet can amount to an acknowledgement of debt as follows:9. In support of the contention that the balance-sheets do not amount to acknowledgements of liability, because they were prepared under compulsion of law Mr. Banerji relies upon the decision in Kashinath v. New Akot Ginning and Pressing Co. Ltd., I.L.R. 1950 Nag. 562 at 568 : A.I.R. 1951 Nag. 255. It is true that the balance-sheets were required to be made both by the Indian Companies Act, 1913 as also by the articles of association of the defendant company. There was a compulsion upon the managing agents to prepare the documents but there was no compulsion upon them to make any particular admission. They faithfully discharged their duty and in doing so they made honest admissions of the Companys liabilities. Those admissions, though made in discharge of their duty, are nevertheless conscious and voluntary admissions. A document is not taken out of the purview of section 19 of the Indian Limitation Act merely on the ground that it is made under compulsion of law, see Venkata v. Partha Saradhi, 1892 I.L.R. 16 Mad. 220 at 222, Udaya Thevar v. Subrahmania Chetti, (1896) 6 M.L.J. 266, 269, Good v. Jane Job, 120 E.R. 810 at 812. I am unable to agree with the reasoning of the Nagpur decision that a balance-sheet does not save limitation because it is drawn up under a duty to set out the claims made on the company and not with the intention of acknowledging liability. The balance-sheet contains admissions of liability; the agent of the company who makes and signs it intends to make those admissions. The admissions do not cease to be acknowledgements of liability merely on the ground that they were made in discharge of a statutory duty. I notice that in the Nagpur case the balance-sheet had been signed by a director and had not been passed either by the Board of Directors or by the company at its annual general meeting and it seems that the actual decision may be distinguished on the ground that the balance-sheet was not made or signed by a duly authorized agent of the company.10. Mr. Banerji next contends that none of the balance-sheets contains an admission of liability subsisting on the date of which it is made. According to him the balance-sheet for the year ended 30-11-1936 which was made on 1-6-1937 contains an admission of past liability as on 30-11-1936 but not an admission of liability existing on 1-6-1937. Mr. Banerji contends that such an admission does not satisfy the test of an acknowledgement under section 19 of the Indian Limitation Act. His contention is supported by Jwala Prasad v. Jwala Bank Ltd., A.I.R. 1957 All. 143 at 145. In that case the Allahabad High Court held that the balance-sheet did not contain any acknowledgement of an existing liability and therefore could not be treated as an acknowledgement under section 19. Mr. Banerji also relied upon the decisions in Kandasami Reddi v. Suppammal, I.L.R. 45 Mad. 443 , Venkata v. Partha Saradhi, I.L.R. 18 Mad. 220, Rustomji on Limitation, 6th Edition, pages 191–193 and the cases collected therein. Now it is well settled that in order to satisfy the test of an acknowledgement under section 19 the admission of liability must be an admission of subsisting liability. In Kandasami Reddi v. Suppammal, I.L.R. 45 Mad. 443 at 445, Ayling J. said, Liability can only signify present liability at the time of acknowledgement and this is clearly laid down in Venkata v. Parthasaradhi, (1893) 16 Mad. 220. In Venkata v. Parthasaradhi, I.L.R. 16 Mad. 220 at 223 Muttasami Ayyar, J. said, It is therefore necessary that upon a reasonable construction of the language used by the debtor in writing the relation of debtor and creditor must appear to be distinctly admitted, that it must be admitted also to be a subsisting jural relation, and then an intention to continue it until it is lawfully determined must also be evident. The section requires a definite admission of liability in respect of the debt, but even an admission that the debt existed at a previous date may, having regard to the language used and the surrounding circumstances, amount to an implied representation that the debt is still subsisting (see Maniram Seth v. Seth Rupchand, I.L.R. 33 Cal. 1047 P.C.). In my opinion the balance-sheets satisfy the test of an acknowledgement under section 19. Each of them contains an admission that balances have been struck at the end of the previous year and that a definite sum has been found to be the balance then due to the creditor. The natural inference to be drawn from the balance-sheet is that the closing balance due to the creditor at the end of the previous year will be carried forward as the opening balance due to him at the beginning of the next year. In each balance-sheet there is thus an admission of a subsisting liability to continue the relation of debtor and creditor and a definite representation of a present intention to keep the liability alive until it is lawfully determined by payment or otherwise. There is necessarily a time lag between the date of the signing of the balance-sheet and the end of the previous year. The balance-sheet contains no admission of the amount due on the date of the signature, that amount may be and often is different from the amount shown as due at the end of the previous year, but that fact alone does not take the document out of the purview of section19. Take the case of a banker and its depositor. Suppose the banker sends to the depositor a monthly statement of account made for the month of February 1961 and signed on March 15, 1961. The statement gives the balance due on February 28, 1961. The amount due on March 15 may be quite different; the banker might have been made payments for the customer, nevertheless the statement amounts to a sufficient acknowledgement under section 19. I am therefore unable to agree with the decision in Jwala Prasad v. Jwala Bank Ltd., A.I.R. 1957 All. 144.11. To come under section 19 an acknowledgement of a debt need not be made to the creditor nor need it amount to a promise to pay the debt. In England it has been held that a balance-sheet of a company stating the amount of its indebtedness to the creditor is a sufficient acknowledgement in respect of a specialty debt under section 5 of the Civil Procedure Act, 1833 (3 and 4 Will — 4c. 42), see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd., 1928 Ch. 836 under section 1 of Lord Tentendens Act, 1828 (9 Geo. 4, c. 14) read with section 13 of the Mercantile Law Amendment Act, 1856 (19 and 20 Vict. c. 97), see Re: The Coliseum (Burrow) Ltd., (1930) 2 Ch. 44 at 47 and under sections 23 and 24 of the Limitation Act, 1939 (c. 21), see Ledingham v. Bermejo Estancia Co. Ltd., (1947) 1 A.E.R. 749 and Jones v. Bellgrove Properties Ltd., (1949) 2 K.B. 700, on appeal from (1949) 1 A.E.R. 498. Section 5 of the Civil Procedure Act, 1833 did not require that the acknowledgement should be given to the claiming creditor and consequently a balance-sheet containing an admission of indebtedness to the debenture holders was a sufficient acknowledgement of liability in respect of the debentures under that section, though it was sent only to the debenture holders who happened to be the shareholders of the company and not to the other debenture holders, see Re: Atlantic and Pacific Fibre Importing and Manufacturing Co. Ltd., (1928) 1 Ch. 836. Under Tentendens Act, 1828 as also under the Limitation Act, 1939 (c. 21) the acknowledgement must be made to the creditor or his agent and if the balance- sheet is sent to a shareholder who is also a creditor the requirements of those Acts were satisfied, see Re: The Coliseum (Burrow) Ltd., (1930) 2 Ch. 44 at 47, Jones v. Bellgrove Properties Ltd., (1949) 1 A.E.R. 498 at 504 affirmed (1949) 2 K.B. 700. The decision in the last case has been followed in India and it has been held that an admission of indebtedness in a balance-sheet is a sufficient acknowledgement under section 19 of the Indian Limitation Act, see Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Co. Ltd., (1951) 2 M.L.J. 535 at 550-1 : A.I.R. 1952 Mad. 136 at 145, Lahore Enamelling and Stamping Co. Ltd. v. A.K. Bhalla, A.I.R. 1958 Punjab 341 at 347, First National Bank Ltd. v. The Mandi (State) Industries Ltd., (1957) 59 Punjab Law Reports 589 and in an unreported decision of S.R. Das Gupta, J. in matter No. 449 of 1955 Re: Vita Supplies Corporation Ltd. decided on December 7, 1956.Importantly, this judgment holds that though the filing of a balance sheet is by compulsion of law, the acknowledgement of a debt is not necessarily so. In fact, it is not uncommon to have an entry in a balance sheet with notes annexed to or forming part of such balance sheet, or in the auditors report, which must be read along with the balance sheet, indicating that such entry would not amount to an acknowledgement of debt for reasons given in the said note.17. Bengal Silk Mills (supra) also dealt with the judgment in Kashinath Sankarappa v. New Akot Cotton Ginning & Pressing Co. Ltd., 1949 SCC OnLine MP 123 : AIR 1951 Nag 255 [Kashinath] by distinguishing the said judgment on the ground that the balance sheet in that case was not made or signed by a duly authorised agent of the company. Quite apart from this, if the said judgment is perused, what becomes clear is that the observation made in paragraph 20 is really an obiter observation, as the High Court went on to hold in paragraph 26 that the balance sheets that were produced were never proved in accordance with law, apart from being validly rejected by the shareholders, as a result of which, such balance sheets could not, therefore, operate as acknowledgements of liability under Section 19 of the Limitation Act, 1908.19. Two other judgments – of the Andhra Pradesh High Court and the Gauhati High Court – were also relied upon by the counsel for the respondents. So far as the Andhra Pradesh High Court is concerned, in Vijayalakshmi v. Hari Hara Ginning and Pressing, Nandigaon, OS A No. 40 of 1998 (decided on 03.03.1999), Liberhan, C.J. differed from a Karnataka High Court judgment which stated that showing of an amount in a balance sheet would amount to an acknowledgement under Section 18 of the Limitation Act. This was done as follows:5. The learned Counsel for the appellant relied on a decision of the Karnataka High Court in State Bank of India v. Hegde and Golay Ltd., 1985 SCC OnLine Kar 428 : ILR 1987 Kar 2673, wherein it is observed that showing of an amount in a balance sheet amounts to an acknowledgement in terms of the Indian Limitation Act. Consequently, the amount having been admitted and the respondent having not paid the same, the petition required admission as laid down by the said judgment that civil suit as well as legal proceedings can continue simultaneously. Without expressing our opinion on the law laid down in the said judgment, though it cannot be categorically laid down that mere showing a debt due in a balance-sheet would amount to acknowledgement, we may observe that it is a well-established law that for giving an acknowledgement, a person has to be conscious of his act to the knowledge of the other person. Merely showing a debt in a balance-sheet cannot, prima facie, as presently advised, be termed to be an acknowledgement in terms of the Indian Limitation Act. The acknowledgement as envisaged by the Limitation Act categorically had to be with the intention of accepting the debt with the object of extending the limitation for recovery, which is not the case herein. Thus, we do not find the case in hand to be covered by the law laid down by the said judgment though we have our own doubts with respect to correctness of the law laid down in the said judgment.This judgment does not, in any manner, even purport to lay down the law. That apart, the statement that an acknowledgement, as envisaged by the Limitation Act, has to be with the intention of accepting the debt with the object of extending the limitation for recovery is de hors Section 18 of the Limitation Act and directly contrary to Shapoor Fredoom Mazda (supra) which is, in fact, referred to in the very next paragraph of the aforesaid judgment. Shapoor Fredoom Mazda (supra) had made it plain that all that was necessary was that the acknowledgement establishes a jural relationship of debtor and creditor, which undoubtedly was established on the facts of that case. This judgment, therefore, cannot avail the respondents.20. Reliance was also placed on a judgment of the Gauhati High Court in Ajit Chandra Bagchi v. Harishpur Tea Company (P.) Ltd., 1990 SCC OnLine Gau 24 : AIR 1991 Gau 92. In particular, paragraphs 9 and 10 were relied upon by learned counsel for the respondents. These paragraphs state:9. I may now turn to the next submission of learned counsel for the appellants - defendants that the plaintiff failed to prove that the amounts in question were due from the defendants. The contention of the counsel is that the plaintiff simply produced before the court certain books of account and balance sheets. No effort was made even to prove the individual entries in the said books of account. The claim was sought to be established by the plaintiff simply on the basis of the balance appearing in the books of account of plaintiff itself as outstanding against the Tea Estates of the defendants. It was submitted that the books of account or the balance sheets showing the amount due from the defendants are not sufficient without other evidence to prove the debt. The learned counsel in this connection relied on section 34 of the Evidence Act, which provides that even entries in the books of account regularly kept in the course of business, which are relevant, are alone not sufficient evidence to charge any person with liability. Learned counsel also relied on the Illustration given to the said section, which is as follows:A sues B for Rs. 1000, and shows entries in his account-books showing B to be indebted to him to this amount. The entries are relevant, but are not sufficient without other evidence to prove the debt.On the basis of the aforesaid provision it was submitted that the entries in the books of account showing the defendants to be indebted to the plaintiff for certain amount might be relevant but are not sufficient to prove the debt. In the instant case, the learned counsel submitted, even the entries have not been proved. What is sought to be proved is the balance appearing in the accounts or in the balance sheet as due from the defendants. Such a course is not permissible except in a case of accounts stated. Admittedly, the present case is not one of accounts stated.10. I have carefully considered the submissions. I find that neither the individual entries have been proved by the plaintiff nor there is any material whatsoever other than the books of account or the balance sheet to prove that the transactions in question in fact took place. No decree can therefore, be obtained by the plaintiff merely on the basis of certain entries in the account books or the balance shown to be due at the end of the year in such accounts or in the balance sheets. The admitted position in the instant case is that no evidence has been adduced by the plaintiff to prove the transactions which had been categorically denied by the defendants in their written statement. In that view of the matter even on facts it has to be held that the plaintiffs failed to prove that the amount claimed in the suit was due from the defendants. In view of the aforesaid finding, I am of the opinion that the learned trial court was not justified in decreeing the suit. The suit was barred by limitation except in so far as it relates to recovery of a sum of Rs. 30/-. Besides, the plaintiff also failed to prove the debt in accordance with law. Under the circumstances, the suit should have been dismissed.This judgment also does not take the case of the respondents any further as, like the Nagpur High Court judgment in Kashinath (supra), the entries in the books of accounts were not proved on the facts of that case.22. A perusal of the aforesaid Sections would show that there is no doubt that the filing of a balance sheet in accordance with the provisions of the Companies Act is mandatory, any transgression of the same being punishable by law. However, what is of importance is that notes that are annexed to or forming part of such financial statements are expressly recognised by Section 134(7). Equally, the auditors report may also enter caveats with regard to acknowledgements made in the books of accounts including the balance sheet. A perusal of the aforesaid would show that the statement of law contained in Bengal Silk Mills (supra), that there is a compulsion in law to prepare a balance sheet but no compulsion to make any particular admission, is correct in law as it would depend on the facts of each case as to whether an entry made in a balance sheet qua any particular creditor is unequivocal or has been entered into with caveats, which then has to be examined on a case by case basis to establish whether an acknowledgement of liability has, in fact, been made, thereby extending limitation under Section 18 of the Limitation Act.23. The judgment in Bengal Silk Mills (supra) has been referred to with approval in various other judgments. Thus, in South Asia Industries (P) Ltd. v. General Krishna Shamsher Jung Bahadur Rana, 1972 SCC OnLine Del 185 : ILR (1972) 2 Del 712, the Delhi High Court held:46. Shri Rameshwar Dial argued that statements in the balance-sheet of a company cannot amount to acknowledgement of liability because the balance-sheet is made under compulsion of the provisions in the Companies Act. There is no force in this argument. In the first place, section 18 of the Limitation Act, 1963, requires only that the acknowledgement of liability must have been made in writing, but it does not prescribe that the writing should be in any particular kind of document. So, the fact that the writing is contained in a balance-sheet is immaterial. In the second place, it is true that section 131 of the Companies Act, 1913 (section 210 of the Companies Act, 1956) makes it compulsory that an annual balance sheet should be prepared and placed before the Company by the Directors, and section 132 (section 211 of the Companies Act, 1956) requires that the balance-sheet should contain a summary, inter alia, of the current liabilities of the company. But, as pointed out by Bachawat J. in Bengal Silk Mills v. Ismail Golam Hossain Ariff, A.I.R. 1962 Calcutta 115 although there was statutory compulsion to prepare the annual balance-sheet, there was no compulsion to make any particular admission, and a document is not taken out of the purview of section 18 of the Indian Limitation Act, 1963 (section 19 of the Indian Limitation Act, 1908) merely on the ground that it is prepared under compulsion of law or in discharge of statutory duty. Reference may also be made to the decisions in Raja of Vizianagram v. Vizianagram Mining Co. Ltd., A.I.R. 1952 Madras 136, Jones v. Bellgrove Properties Ltd., (1949) 1 All E.R. 498; and Lahore Enamelling and Stamping Co. v. A.K. Bhalla, A.I.R. 1958 Punjab 341, in which statements in balance- sheets of companies were held to amount to acknowledgements of liability of the companies.47. Shri Rameshwar Dial referred to the decision of the Privy Council in Consolidated Agencies Ltd. v. Bertram Ltd., (1964) 3 All. E.R. 282. We shall advert to this decision presently when we deal with another argument of Shri Rameshwar Dial, and it is sufficient to state so far as the argument under consideration is concerned that even in this decision of the Privy Council it has been recognised that balance-sheets could in certain circumstances amount to acknowledgements of liability. It cannot, therefore, be said as a general proposition of law that statements in balance-sheets of a company cannot operate at all as acknowledgements of liability as contended by Shri Rameshwar Dial.48. The learned counsel next argued that the words used in the entry in the balance-sheet in the present case did not amount to any acknowledgement of liability. We do not think so. The words used in the entry apparently show that in explaining its current liabilities and the provisions made for the same, it was stated that there was a sum of Rs. 7,87,150.42 held in share- holders suspense account for payment to the share-holders of the Indian National Airways Limited (in voluntary liquidation — since dissolved). The words used clearly acknowledge the liability. The learned single Judge also took the same view as regards the words used in the balance-sheet. In Lahore Enamelling and Stamping Co. Ltd. v. A.K. Bhalla, Tek Chand J. held that debts due to creditors not mentioned by name but included in the item relating to Loans (unsecured) or as due to Sundry Creditors mentioned in the balance-sheet amount to an acknowledgement of liability for the purposes of section 19 of the Indian Limitation Act, 1908. There was thus no force in the argument of the learned counsel.51. The next argument was that the balance-sheet was no doubt signed by two Directors, but they did not sign as duly authorised agents of the transferee company as required by explanation (b) to section 18 of the Limitation Act. There is no substance in this argument. The Companies Act, 1956, came into force in 1956. Section 210 of the Act requires the Board of Directors to lay a balance-sheet before the company at the Annual General Meeting. Section 211 prescribes the form and contents of a balance-sheet. The form of balance-sheet is given in Part 1 of Schedule VI to the Act, and according to it the current liabilities and provisions have to be set out in the balance-sheet. Section 215(i)(ii) requires that the balance-sheet should be signed on behalf of the Board of Directors, inter alia, by the Secretary of the Company and by not less than two Directors of the company. Section 215(3) provides that a balance-sheet shall be approved by the Board of Directors before it is signed on behalf of the Board of Directors in accordance with section 215(i)(ii) and before it is submitted to the Auditors for their report thereon. Thus, the statement of current liabilities and provisions in the balance-sheet has to be approved by the Board of Directors before it is signed by the Secretary and two Directors on behalf of the Board. In other words, the balance-sheet is signed by the Secretary and two Directors at the instance and on the approval of the Board of Directors of the company. After the balance-sheet is audited, section 216 requires that the Auditors report should be attached to the balance-sheet, and section 217 requires the Board of Directors also to make a report. The balance-sheet together with the Auditors report and the Boards report are then required to be placed before the company at the annual general meeting for adoption of the balance-sheet. After the balance- sheet has been so laid before the company at the annual general meeting, section 220 requires that three copies of the balance-sheet should be filed with the Registrar. In the present case, the balance-sheet (Schedule D to Annexure J) was signed by the Secretary and two Directors, and Annexure J contains the Auditors report and the Boards report. It was stated in the judgment of the learned single Judge that the balance-sheet was adopted by the company and the same was not disputed before us. It is thus quite clear that the balance- sheet was signed by duly authorised agents of the company.27. In CIT-III v. Shri Vardhman Overseas Ltd., 2011 SCC OnLine Del 5599 : (2012) 343 ITR 408 , the Delhi High Court held:17. In the case before us, as rightly pointed out by the Tribunal, the assessee has not transferred the said amount from the creditors account to its profit and loss account. The liability was shown in the balance sheet as on 31st March, 2002. The assessee being a limited company, this amounted to acknowledging the debts in favour of the creditors. Section 18 of the Limitation Act, 1963 provides for effect of acknowledgement in writing. It says where before the expiration of the prescribed period for a suit in respect of any property or right, an acknowledgement of liability in respect of such property or right has been made in writing signed by the party against whom such property or right is claimed, a fresh period of limitation shall commence from the time when the acknowledgement was so signed. In an early case, in England, in Jones v. Bellgrove Properties, (1949) 2KB 700, it was held that a statement in a balance sheet of a company presented to a creditor-share holder of the company and duly signed by the directors constitutes an acknowledgement of the debt. In Mahabir Cold Storage v. CIT (1991) 188 ITR 91 : 1991 Supp (1) SCC 402, the Supreme Court held:The entries in the books of accounts of the appellant would amount to an acknowledgement of the liability to Messrs. Prayagchand Hanumanmal within the meaning of Section 18 of the Limitation Act, 1963, and extend the period of limitation for the discharge of the liability as debt.In several judgments of this Court, this legal position has been accepted. In Daya Chand Uttam Prakash Jain v. Santosh Devi Sharma 67 (1997) DLT 13 , S.N. Kapoor J. applied the principle in a case where the primary question was whether a suit under Order 37 CPC could be filed on the basis of an acknowledgement. In Larsen & Toubro Ltd. v. Commercial Electric Works 67 (1997) DLT 387 a Single Judge of this Court observed that it is well settled that a balance sheet of a company, where the defendants had shown a particular amount as due to the plaintiff, would constitute an acknowledgement within the meaning of Section 18 of the Limitation Act. In Rishi Pal Gupta v. S.J. Knitting & Finishing Mills Pvt. Ltd. 73 (1998) DLT 593 , the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd. Ahmedabad v. CIT Gujarat (1964) 54 ITR 167 , it was further held that a debt shown in a balance sheet of a company amounts to an acknowledgement for the purpose of Section 19 of the Limitation Act and in order to be so, the balance sheet in which such acknowledgement is made need not be addressed to the creditors. In light of these authorities, it must be held that in the present case, the disclosure by the assessee company in its balance sheet as on 31st March, 2002 of the accounts of the sundry creditors amounts to an acknowledgement of the debts in their favour for the purposes of Section 18 of the Limitation Act. The assessees liability to the creditors, thus, subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law.28. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535 : (2013) 202 DLT 735, the Delhi High Court held:7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd. 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held:5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:—7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed.33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020.34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also.35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.6. There can be no doubt whatsoever that the appellant has been completely remiss and deficient in pleading acknowledgement of liability on the facts of this case. However, given the staggering amount allegedly due from the respondents, we afford one further opportunity to the appellant to amend its pleadings so as to incorporate what is stated in the written submissions filed by it before the NCLAT, subject to costs of Rs.1,00,000/- to be paid by the appellant to the respondents within a period of four weeks from today.2. Suffice it to say that the basis of the Section 7 application in this case was a DRT decree dated 17.08.2018, pursuant to which a recovery certificate dated 19.06.2019 was issued. The Section 7 application averred that the date of the DRT decree furnished the cause of action and, thus, was the starting point of limitation in this case.4. There can be no doubt that the NCLT had, in its order dated 19.08.2019, stated that Article 63(a) of the Limitation Act would apply instead of Article 137, contrary to what has been held by us in several judgments. It cannot, therefore, be said that the Calcutta High Court wrongly exercised jurisdiction in setting aside this finding. However, the High Court then went on to refer to certain balance sheets that had been produced, thereby extending limitation under Section 18 of the Limitation Act, but held that given the judgment in Babulal (supra), such balance sheets could not extend limitation. | 1 | 17,815 | 8,506 | ### 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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11337 : (2017) 4 KLJ 80 , the Kerala High Court held: 7. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirement of law for a valid acknowledgement under Section 18 of the Act. We may recapitulate the words of Mr. Justice P. Subramonian Poti in Krishnan Assari v. Akilakerala Viswakarma Maha Sabha [1980 KLT 515 (DB)] and the following is the extract: 10. How far the balance sheets could be acted upon in deciding the claim of the appellant is the next question. The appellant relies on the balance sheets as acknowledgement of liability contemplated in S. 18 of the Limitation Act, 1963. Under S. 18 an acknowledgement of liability signed by the party against whom the right is claimed gives rise to a fresh period of limitation. Under Explanation (b) to the Section the word signed means signed either personally or by an agent duly authorised. A company being a corporate body acts through its representatives, the Managing Director and the Board of Directors. Under S. 210 of the Companies Act it is the statutory duty of the Board of Directors to lay before the Company at every annual general body meeting a balance sheet and a profit and loss account for the preceding financial year. S. 211 directs that the form and contents of the balance sheet should be as set out in Part I of Schedule VI. The said form stipulates for the details of the loans and advances and also of sundry creditors. The balance sheet should be approved by the Board of Directors, and thereafter authenticated by the Manager or the Secretary if any and not less than two directors one of whom should be the Managing Director. (See S. 215). The Act also provides for supply of copies of the balance sheet to the members before the company in general meeting. Going by the above provisions, a balance sheet is the statement of assets and liabilities of the company as at the end of the financial year, approved by the Board of Directors and authenticated in the manner provided by law. The persons who authenticate the document do so in their capacity as agents of the company. The inclusion of a debt in a balance sheet duly prepared and authenticated would amount to admission of a liability and therefore satisfies the requirements of law for a valid acknowledgement under S. 18 of the Limitation Act, even though the directors by authenticating the balance sheet merely discharge a statutory duty and may not have intended to make an acknowledgement. 31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held: 5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:— 7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point. 6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed. 32. In Agni Aviation Consultants v. State of Telangana, 2020 SCC OnLine TS 1462 : (2020) 5 ALD 561, the High Court of Telangana held: 107. In several cases, various High Courts have held that an acknowledgement of liability in the balance sheet by a Company registered under the Companies Act, 1956 extends the period of limitation though it is not addressed to the creditor specifically. (Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, Bhajan Singh Samra v. Wimpy International Ltd., 2012 SCC OnLine Del 2939, Vijay Kumar Machinery and Electrical Stores v. Alaparthi Lakshmi Kanthamma, (1969) 74 ITR 224 (AP) , and Bengal Silk Mills Company, Raja of Vizianagram v. Official Liquidator, Vizianagram Mining Company Limited, AIR 1952 Mad 1361). 108. Therefore it is not necessary that the acknowledgement of liability must be contained in a document addressed to the creditor i.e. the petitioners in the instant case. 33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020. 34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also. 35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.
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& Finishing Mills Pvt. Ltd. 73 (1998) DLT 593 , the same view was taken. The last two decisions were cited by Geeta Mittal, J. in S.C. Gupta v. Allied Beverages Company Pvt. Ltd. (decided on 30/4/2007) and it was held that the acknowledgement made by a company in its balance sheet has the effect of extending the period of limitation for the purposes of Section 18 of the Limitation Act. In Ambika Mills Ltd. Ahmedabad v. CIT Gujarat (1964) 54 ITR 167 , it was further held that a debt shown in a balance sheet of a company amounts to an acknowledgement for the purpose of Section 19 of the Limitation Act and in order to be so, the balance sheet in which such acknowledgement is made need not be addressed to the creditors. In light of these authorities, it must be held that in the present case, the disclosure by the assessee company in its balance sheet as on 31st March, 2002 of the accounts of the sundry creditors amounts to an acknowledgement of the debts in their favour for the purposes of Section 18 of the Limitation Act. The assessees liability to the creditors, thus, subsisted and did not cease nor was it remitted by the creditors. The liability was enforceable in a court of law.28. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd., 2013 SCC OnLine Del 2535 : (2013) 202 DLT 735, the Delhi High Court held:7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd. 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.31. In Zest Systems Pvt. Ltd. v. Center for Vocational and Entrepreneurship Studies, 2018 SCC OnLine Del 12116, the Delhi High Court held:5. In Shahi Exports Pvt. Ltd. v. CMD Buildtech Pvt. Ltd. (supra) this court held as follows:—7. It is hardly necessary to cite authorities in support of the well-established position that an entry made in the companys balance sheet amounts to an acknowledgement of the debt and has the effect of extending the period of limitation under section 18 of the Limitation Act, 1963. However, I may refer to only one decision of the learned single judge of this Court (Manmohan, J.) in Bhajan Singh Samra v. Wimpy International Ltd., 185 (2011) DLT 428 for the simple reason that it collects all the relevant authorities on the issue, including some of the judgments cited before me on behalf of the petitioners. This judgment entirely supports the petitioners on this point.6. In view of the legal position spelt out in judgments noted above, the acknowledgement of the debt in the balance sheet extends the period of limitation. The acknowledgement is as on 31.3.2015. This suit is filed in 2017. The suit is clearly within limitation. The present application is allowed.33. It is, therefore, clear that the majority decision of the Full Bench in V. Padmakumar (supra) is contrary to the aforesaid catena of judgments. The minority judgment of Justice (Retd.) A.I.S. Cheema, Member (Judicial), after considering most of these judgments, has reached the correct conclusion. We, therefore, set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020.34. The NCLAT, in the impugned judgment dated 22.12.2020, has, without reconsidering the majority decision of the Full Bench in V. Padmakumar (supra), rubber-stamped the same. We, therefore, set aside the aforesaid impugned judgment also.35. On the facts of this case, the NCLT, by its judgment dated 19.02.2020, recorded that the default in this case had been admitted by the corporate debtor, and that the signed balance sheet of the corporate debtor for the year 2016-2017 was not disputed by the corporate debtor. As a result, the NCLT held that the Section 7 application was not barred by limitation, and therefore, admitted the same. We have already set aside the majority judgment of the Full Bench of the NCLAT dated 12.03.2020, and the impugned judgment of the NCLAT dated 22.12.2020 in paragraphs 33 and 34.6. There can be no doubt whatsoever that the appellant has been completely remiss and deficient in pleading acknowledgement of liability on the facts of this case. However, given the staggering amount allegedly due from the respondents, we afford one further opportunity to the appellant to amend its pleadings so as to incorporate what is stated in the written submissions filed by it before the NCLAT, subject to costs of Rs.1,00,000/- to be paid by the appellant to the respondents within a period of four weeks from today.2. Suffice it to say that the basis of the Section 7 application in this case was a DRT decree dated 17.08.2018, pursuant to which a recovery certificate dated 19.06.2019 was issued. The Section 7 application averred that the date of the DRT decree furnished the cause of action and, thus, was the starting point of limitation in this case.4. There can be no doubt that the NCLT had, in its order dated 19.08.2019, stated that Article 63(a) of the Limitation Act would apply instead of Article 137, contrary to what has been held by us in several judgments. It cannot, therefore, be said that the Calcutta High Court wrongly exercised jurisdiction in setting aside this finding. However, the High Court then went on to refer to certain balance sheets that had been produced, thereby extending limitation under Section 18 of the Limitation Act, but held that given the judgment in Babulal (supra), such balance sheets could not extend limitation.
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M/S. Berger Paints India Ltd Vs. C.I.T., Delhi-V | no merit in that contention. The Tribunal has pointed out that the share capital of the Company as borne out by its audited accounts is limited to Rs.7,88,19679/-. The company’s accounts do not show the reserve and surplus of Rs.19,66,36,734/- as a part of its issued, subscribed and paid up capital. It is true that the surplus amount of Rs.19,66,36,734/- is taken as part of share holders fund but the same was not a part of the issued, subscribed and paid up capital of the Company. Explanation to Section 35D(3) of the Act does not include the reserve and surplus of the Company as a part of the capital employed in the business of the Company. If the intention was that any amount other than the share capital, debentures and long term borrowings of the Company ought to be treated as part of the capital employed in the business of the company, the Parliament would have suitably provided for the same. So long as that has not been done and so long as the capital employed in the business of the Company is restricted to the issued share capital, debentures and long term borrowings, there is no room for holding that the premium, if any, collected by the Company on the issue of its share capital would also constitute a part of the capital employed in the business of the Company for purposes of deduction under Section 35D. The Tribunal was, in that view of the matter, perfectly justified in allowing the appeal filed by the Revenue and restoring the order passed by the Assessing Officer.” 17) We are in complete agreement with the view taken by the High Court quoted supra as, in our considered opinion, the well-reasoned judgment/order of the High Court correctly explains the true meaning of the expression employed in sub-section3(b) of Section 35D read with Explanation (b) quoted above, calling no interference in the appeals.18) In our considered opinion also, the "premium amount" collected by the Company on its subscribed issued share capital is not and cannot be said to be the part of "capital employed in the business of the Company" for the purpose of Section 35D(3)(b) of the Act and hence the appellant-Company was rightly held not entitled to claim any deduction in relation to the amount received towards premium from its various shareholders on the issued shares of the Company.19) This we say for more than one reason. First, if the intention of the Legislature were to treat the amount of "premium" collected by the Company from its shareholders while issuing the shares to be the part of "capital employed in the business of the company", then it would have been specifically said so in the Explanation(b) of sub-section(3) of Section 35D of the Act. It was, however, not said.20) Second, on the other hand, non-mentioning of the words does indicate the legislative intent that the Legislature did not intend to extend the benefit of Section 35D to such sum. Third, these two reasons are in conformity with the view taken by this Court in the case of Commissioner of Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143. Wherein the question arose as to whether an amount of Rs.45,50,000/- received by the assessee (Bank) in cash as "premium" from its various shareholders on issuing share on premium is liable to be included in their paid up capital for the purpose of allowing the assessee to claim rebate under Paragraph D of Part II of the first Schedule to the Indian Finance Act 1956. 21) It was noticed therein that Part II - paragraph D while specifying the rates of super tax had added an Explanation, which reads as under: Explanation.—For the purposes of para D of this part— "(i) the expression ‘paid-up capital’ means the paid-up capital (other than capital entitled to a dividend at a fixed rate) of the Company as on the first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the company on the issue of its shares, standing to the credit of the share premium account as on the first day of the previous year ….” (Emphasis supplied) 22) This Court speaking through the learned Judge J.C. Shah, J. (as His Lordship then was and later became CJI) after examining the issue in the context of Para D read with its Explanation held that “share premium account” was liable to be included in the paid up capital for the purposes of computing rebate. One of the reasons to allow such inclusion with the paid up capital was that such inclusion was permitted by the specific words in the Explanation. Such was, however, not the case here.23) As rightly pointed out by the learned Attorney General appearing for the Revenue, the Companies Act provides in its Schedule V- Part II (Section 159) a Form of Annual Return, which is required to be furnished by the Company having share capital every year. Column III of this Form, which deals with capital structure of the company, provides the break up of "issued shares capital break up". This column does not include in it the "premium amount collected by the company from its shareholders on its issued share capital". This is indicative of the fact that such amount is not considered a part of the capital unless it is specifically provided in the relevant section.24) Similarly, as rightly pointed out, Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act. | 0[ds]13) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in theWe are in complete agreement with the view taken by the High Court quoted supra as, in our considered opinion, the well-reasoned judgment/order of the High Court correctly explains the true meaning of the expression employed in sub-section3(b) of Section 35D read with Explanation (b) quoted above, calling no interference in the appeals.18) In our considered opinion also, the "premium amount" collected by the Company on its subscribed issued share capital is not and cannot be said to be the part of "capital employed in the business of the Company" for the purpose of Section 35D(3)(b) of the Act and hence the appellant-Company was rightly held not entitled to claim any deduction in relation to the amount received towards premium from its various shareholders on the issued shares of the Company.19) This we say for more than one reason. First, if the intention of the Legislature were to treat the amount of "premium" collected by the Company from its shareholders while issuing the shares to be the part of "capital employed in the business of the company", then it would have been specifically said so in the Explanation(b) of sub-section(3) of Section 35D of the Act. It was, however, not said.20) Second, on the other hand, non-mentioning of the words does indicate the legislative intent that the Legislature did not intend to extend the benefit of Section 35D to such sum. Third, these two reasons are in conformity with the view taken by this Court in the case of Commissioner of Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143. Wherein the question arose as to whether an amount of Rs.45,50,000/- received by the assessee (Bank) in cash as "premium" from its various shareholders on issuing share on premium is liable to be included in their paid up capital for the purpose of allowing the assessee to claim rebate under Paragraph D of Part II of the first Schedule to the Indian Finance ActThis Court speaking through the learned Judge J.C. Shah, J. (as His Lordship then was and later became CJI) after examining the issue in the context of Para D read with its Explanation held thatwas liable to be included in the paid up capital for the purposes of computing rebate. One of the reasons to allow such inclusion with the paid up capital was that such inclusion was permitted by the specific words in the Explanation. Such was, however, not the case here.23) As rightly pointed out by the learned Attorney General appearing for the Revenue, the Companies Act provides in its Schedule V- Part II (Section 159) a Form of Annual Return, which is required to be furnished by the Company having share capital every year. Column III of this Form, which deals with capital structure of the company, provides the break up of "issued shares capital break up". This column does not include in it the "premium amount collected by the company from its shareholders on its issued share capital". This is indicative of the fact that such amount is not considered a part of the capital unless it is specifically provided in the relevant section.24) Similarly, as rightly pointed out, Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act. | 0 | 2,775 | 722 | ### 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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no merit in that contention. The Tribunal has pointed out that the share capital of the Company as borne out by its audited accounts is limited to Rs.7,88,19679/-. The company’s accounts do not show the reserve and surplus of Rs.19,66,36,734/- as a part of its issued, subscribed and paid up capital. It is true that the surplus amount of Rs.19,66,36,734/- is taken as part of share holders fund but the same was not a part of the issued, subscribed and paid up capital of the Company. Explanation to Section 35D(3) of the Act does not include the reserve and surplus of the Company as a part of the capital employed in the business of the Company. If the intention was that any amount other than the share capital, debentures and long term borrowings of the Company ought to be treated as part of the capital employed in the business of the company, the Parliament would have suitably provided for the same. So long as that has not been done and so long as the capital employed in the business of the Company is restricted to the issued share capital, debentures and long term borrowings, there is no room for holding that the premium, if any, collected by the Company on the issue of its share capital would also constitute a part of the capital employed in the business of the Company for purposes of deduction under Section 35D. The Tribunal was, in that view of the matter, perfectly justified in allowing the appeal filed by the Revenue and restoring the order passed by the Assessing Officer.” 17) We are in complete agreement with the view taken by the High Court quoted supra as, in our considered opinion, the well-reasoned judgment/order of the High Court correctly explains the true meaning of the expression employed in sub-section3(b) of Section 35D read with Explanation (b) quoted above, calling no interference in the appeals.18) In our considered opinion also, the "premium amount" collected by the Company on its subscribed issued share capital is not and cannot be said to be the part of "capital employed in the business of the Company" for the purpose of Section 35D(3)(b) of the Act and hence the appellant-Company was rightly held not entitled to claim any deduction in relation to the amount received towards premium from its various shareholders on the issued shares of the Company.19) This we say for more than one reason. First, if the intention of the Legislature were to treat the amount of "premium" collected by the Company from its shareholders while issuing the shares to be the part of "capital employed in the business of the company", then it would have been specifically said so in the Explanation(b) of sub-section(3) of Section 35D of the Act. It was, however, not said.20) Second, on the other hand, non-mentioning of the words does indicate the legislative intent that the Legislature did not intend to extend the benefit of Section 35D to such sum. Third, these two reasons are in conformity with the view taken by this Court in the case of Commissioner of Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143. Wherein the question arose as to whether an amount of Rs.45,50,000/- received by the assessee (Bank) in cash as "premium" from its various shareholders on issuing share on premium is liable to be included in their paid up capital for the purpose of allowing the assessee to claim rebate under Paragraph D of Part II of the first Schedule to the Indian Finance Act 1956. 21) It was noticed therein that Part II - paragraph D while specifying the rates of super tax had added an Explanation, which reads as under: Explanation.—For the purposes of para D of this part— "(i) the expression ‘paid-up capital’ means the paid-up capital (other than capital entitled to a dividend at a fixed rate) of the Company as on the first day of the previous year relevant to the assessment for the year ending on 31st day of March, 1957, increased by any premiums received in cash by the company on the issue of its shares, standing to the credit of the share premium account as on the first day of the previous year ….” (Emphasis supplied) 22) This Court speaking through the learned Judge J.C. Shah, J. (as His Lordship then was and later became CJI) after examining the issue in the context of Para D read with its Explanation held that “share premium account” was liable to be included in the paid up capital for the purposes of computing rebate. One of the reasons to allow such inclusion with the paid up capital was that such inclusion was permitted by the specific words in the Explanation. Such was, however, not the case here.23) As rightly pointed out by the learned Attorney General appearing for the Revenue, the Companies Act provides in its Schedule V- Part II (Section 159) a Form of Annual Return, which is required to be furnished by the Company having share capital every year. Column III of this Form, which deals with capital structure of the company, provides the break up of "issued shares capital break up". This column does not include in it the "premium amount collected by the company from its shareholders on its issued share capital". This is indicative of the fact that such amount is not considered a part of the capital unless it is specifically provided in the relevant section.24) Similarly, as rightly pointed out, Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act.
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13) Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in theWe are in complete agreement with the view taken by the High Court quoted supra as, in our considered opinion, the well-reasoned judgment/order of the High Court correctly explains the true meaning of the expression employed in sub-section3(b) of Section 35D read with Explanation (b) quoted above, calling no interference in the appeals.18) In our considered opinion also, the "premium amount" collected by the Company on its subscribed issued share capital is not and cannot be said to be the part of "capital employed in the business of the Company" for the purpose of Section 35D(3)(b) of the Act and hence the appellant-Company was rightly held not entitled to claim any deduction in relation to the amount received towards premium from its various shareholders on the issued shares of the Company.19) This we say for more than one reason. First, if the intention of the Legislature were to treat the amount of "premium" collected by the Company from its shareholders while issuing the shares to be the part of "capital employed in the business of the company", then it would have been specifically said so in the Explanation(b) of sub-section(3) of Section 35D of the Act. It was, however, not said.20) Second, on the other hand, non-mentioning of the words does indicate the legislative intent that the Legislature did not intend to extend the benefit of Section 35D to such sum. Third, these two reasons are in conformity with the view taken by this Court in the case of Commissioner of Income Tax, West Bengal vs. Allahabad Bank Ltd., (1969) 2 SCC 143. Wherein the question arose as to whether an amount of Rs.45,50,000/- received by the assessee (Bank) in cash as "premium" from its various shareholders on issuing share on premium is liable to be included in their paid up capital for the purpose of allowing the assessee to claim rebate under Paragraph D of Part II of the first Schedule to the Indian Finance ActThis Court speaking through the learned Judge J.C. Shah, J. (as His Lordship then was and later became CJI) after examining the issue in the context of Para D read with its Explanation held thatwas liable to be included in the paid up capital for the purposes of computing rebate. One of the reasons to allow such inclusion with the paid up capital was that such inclusion was permitted by the specific words in the Explanation. Such was, however, not the case here.23) As rightly pointed out by the learned Attorney General appearing for the Revenue, the Companies Act provides in its Schedule V- Part II (Section 159) a Form of Annual Return, which is required to be furnished by the Company having share capital every year. Column III of this Form, which deals with capital structure of the company, provides the break up of "issued shares capital break up". This column does not include in it the "premium amount collected by the company from its shareholders on its issued share capital". This is indicative of the fact that such amount is not considered a part of the capital unless it is specifically provided in the relevant section.24) Similarly, as rightly pointed out, Section 78 of the Companies Act which deals with the "issue of shares at premium and discount" requires a Company to transfer the amount so collected as premium from the shareholders and keep the same in a separate account called "securities premium account". It does not anywhere says that such amount be treated as part of capital of the company employed in the business for one or other purpose, as the case may be, even under the Companies Act.
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M/S PURI INVESTMENTS Vs. M/S YOUNG FRIENDS AND CO. & ORS | premises for repelling the plea of sub-letting or assignment or parting with possession. From the passage of the judgment of this Court in the case of Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. The Appellate Forum found:- 26. I may observe that the job of a doctor is basically to provide consultancy. He is not to sell any goods. He is only to examine the patients and prescribe treatment and charge his fee. For doing so aforesaid, he only requires a place where he can sit, the client can come, the doctor may have privacy and is able to write a prescription to the client and, if required, to examine him either on a dental chair in the case of a Dentists or a bed in case of other patients and nothing else. All these facilities were being made available to the doctors who came to the suit premises and that also in exclusive portion, i.e., Mezzanine floor without any interference even by the tenant. Merely because the doctors had to come at fixed hours would not make their occupation merely that of a licensee and not of a sub-tenant, because now it is a matter of common sense and common knowledge that many buildings have a common central door where a lock is put by a guard who opens the same in the morning and closes the same in the evening while everyone occupying a portion of the building uses his own portion as and when they are required to come as also it is being done in the case of a lawyer. The lawyer also comes only in the office hours and in the day is not expected to remain in his chamber. However, in the case of a lawyer, he is required to maintain a library and records and might be using his library. But in the case of a doctor, he is not required to keep any lock because what he is required to do is to come, sit, provide consultancy and go. Thus, for the period for which he is in his clinic, he has exclusive possession thereof. It does not matter that before starting his practice and closing the same, the premises is not even locked by him. It is nobodys case that till such time, the doctors were permitted to run their practice in the polyclinic, they were asked to go back even during the hours fixed for opening the clinic. Merely because the first Respondent being a chemist was also being benefitted in selling his medicines will not permit a tenant to allow number of doctors to sit and run their own consultancy including the Dentist who otherwise may not have anything to do with the sale of medicine and is required to fix teeth which are prepared elsewhere and not by the first Respondent or by cleaning the teeth which is the major service provided by the Dentist. Moreover, permitting a Dentist to have his own chair in a clinic where visiting hours are limited, would not make the doctor only a licencee. 27. At this juncture, I may observe that user of the property by licencees are those cases where family members, a wife, or a son have been permitted to use a portion of the suit property along with the tenant who happens to be either the father or the husband or a near relative which is not the case here. 28. As a matter of fact, the arrangement which was being followed between the tenant and the doctor, namely Respondent nos. 2 to 4, makes it explicit that that user of the suit premises that too of Mezzanine floor was exclusive for the time they were permitted to run their practice and must have been under a secret arrangement between the tenant and the doctors to which the landlord cannot have access and he can only infer that some kind of consideration must have passed by the sub-tenant in favour of the tenant which must be the only reason as to why the first Respondent permitted user of portion of suit property to Respondent nos. 2 to 4 on regular intervals and also permitted them to put their names outside the polyclinic including the timings of their coming. The tenant even allowed them to have their own telephones installed in the suit premises so as to facilitate the clients to have the consultancy at a time convenient to the doctor and the patient without any interference of the tenant in this regard. Such kind of arrangement cannot be termed as mere licence and must be treated as exclusive possession though for a short period and would certainly furnish a ground for eviction under Section 14(1)(b) of the Delhi Rent Control Act. Accordingly, the Trial Court has not appreciated this fine distinction of law and, therefore, the findings returned by the Trial Court suffer from material irregularity and calls for interference by this appellate court. 13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forums decision was perverse and the manner in which such finding was arrived at was itself perverse. | 1[ds]In our view, the guiding principles which emerge from these authorities on the question which we are addressing in this judgment can be adopted from the following three decisions:-(i) Ram Murti Devi (supra)(ii) Flora Elias Nahoum (supra)(iii) Bharat Sales Ltd. (supra)8. In the case of Ram Murti Devi (supra), it has been held:-21.1. In a suit by the landlord for eviction of the tenant on the ground of sub-letting the landlord has to prove by leading evidence that:(a) A third party was found to be in exclusive possession of the whole or part of rented property.(b) Parting of possession thereof was for monetary consideration.21.2. The onus to prove sub-letting is on the landlord and if he has established parting of possession in favour of a third party either wholly or partly, the onus would shift to the tenant to explain.In the case of Flora Elias Nahoum (supra) the question of burden to establish sub-letting has been discussed and it has been observed:-36. In our view, since the respondent had admitted the presence of Joynal Mullick in the suit shop, the burden was on him to prove its nature and the capacity in which he used to sit in the suit shop.In that case, plea of sub-letting was made on the allegation of inducting one Joynal Mullick in a shop room by the tenant.9. On the question of onus to establish receipt of monetary consideration by the tenant from the person whose induction gives rise to cause of action based on sub-letting, it has been held in the case of Bharat Sales Ltd. (supra):-4. Sub-tenancy or sub-letting comes into existence when the tenant gives up possession of the tenanted accommodation, wholly or in part, and puts another person in exclusive possession thereof. This arrangement comes about obviously under a mutual agreement or understanding between the tenant and the person to whom the possession is so delivered. In this process, the landlord is kept out of the scene. Rather, the scene is enacted behind the back of the landlord, concealing the overt acts and transferring possession clandestinely to a person who is an utter stranger to the landlord, in the sense that the landlord had not let out the premises to that person nor had he allowed or consented to his entering into possession over the demised property. It is the actual, physical and exclusive possession of that person, instead of the tenant, which ultimately reveals to the landlord that the tenant to whom the property was let out has put some other person into possession of that property. In such a situation, it would be difficult for the landlord to prove, by direct evidence, the contract or agreement or understanding between the tenant and the sub-tenant. It would also be difficult for the landlord to prove, by direct evidence, that the person to whom the property had been sub-let had paid monetary consideration to the tenant. Payment of rent, undoubtedly, is an essential element of lease or sub-lease. It may be paid in cash or in kind or may have been paid or promised to the paid. It may have been paid in lump-sum in advance covering the period for which the premises is let out or sub-let or it may have been paid or promised to be paid periodically. Since payment of rent or monetary consideration may have been made secretly, the law does not require such payment to be proved by affirmative evidence and the court is permitted to draw its own inference upon the facts of the case proved at the trial, including the delivery of exclusive possession to infer that the premises were sub-let.10. In the case before us, occupation of a portion of the subject-premises by the three doctors stands admitted. What has been argued by the learned counsel for the appellant is that once the Tribunal had arrived at a finding on fact based on the principles of law, which have been enunciated by this Court, and reflected in the aforesaid passages quoted from the three authorities, the interference by the High Court under Article 227 of the Constitution of India was unwarranted. To persuade us to sustain the High Courts order, learned counsel appearing for the respondents has emphasized that full control over the premises was never ceded to the medical practitioners and the entry and exit to the premises in question remained under exclusive control of the respondent(s)-tenant. This is the main defence of the tenant. We have considered the submissions of the respective counsel and also gone through the decisions of the fact-finding fora and also that of the High Court. At this stage, we cannot revisit the factual aspects of the dispute. Nor can we re-appreciate evidence to assess the quality thereof, which has been considered by the two fact-finding fora. The view of the forum of first instance was reversed by the Appellate Tribunal. The High Court was conscious of the restrictive nature of jurisdiction under Article 227 of the Constitution of India. In the judgment under appeal, it has been recorded that it could not subject the decision of the appellate forum in a manner which would project as if it was sitting in appeal. It proceeded, on such observation being made, to opine that it was the duty of the supervisory Court to interdict if it was found that findings of the appellate forum were perverse. Three situations were spelt out in the judgment under appeal as to when a finding on facts or questions of law would be perverse. These are:-(i) Erroneous on account of non-consideration of material evidence, or(ii) Being conclusions which are contrary to the evidence, or(iii) Based on inferences that are impermissible in law.11. We are in agreement with the High Courts enunciation of the principles of law on scope of interference by the supervisory Court on decisions of the fact-finding forum. But having gone through the decisions of the two stages of fact-finding by the statutory fora, we are of the view that there was overstepping of this boundary by the supervisory Court. In its exercise of scrutinizing the evidence to find out if any of the three aforesaid conditions were breached, there was re-appreciation of evidence itself by the supervisory Court.12. In our opinion, the High Court in exercise of its jurisdiction under Article 227 of the Constitution of India in the judgment under appeal had gone deep into the factual arena to disagree with the final fact-finding forum. There is no dispute that the three medical practitioners were in occupation of part of the premises in question. The onus, under such circumstances, was on the respondents to establish the degree of control they were maintaining over the said premises for repelling the plea of sub-letting or assignment or parting with possession. From the passage of the judgment of this Court in the case of Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. The Appellate Forum found:-26. I may observe that the job of a doctor is basically to provide consultancy. He is not to sell any goods. He is only to examine the patients and prescribe treatment and charge his fee. For doing so aforesaid, he only requires a place where he can sit, the client can come, the doctor may have privacy and is able to write a prescription to the client and, if required, to examine him either on a dental chair in the case of a Dentists or a bed in case of other patients and nothing else. All these facilities were being made available to the doctors who came to the suit premises and that also in exclusive portion, i.e., Mezzanine floor without any interference even by the tenant. Merely because the doctors had to come at fixed hours would not make their occupation merely that of a licensee and not of a sub-tenant, because now it is a matter of common sense and common knowledge that many buildings have a common central door where a lock is put by a guard who opens the same in the morning and closes the same in the evening while everyone occupying a portion of the building uses his own portion as and when they are required to come as also it is being done in the case of a lawyer. The lawyer also comes only in the office hours and in the day is not expected to remain in his chamber. However, in the case of a lawyer, he is required to maintain a library and records and might be using his library. But in the case of a doctor, he is not required to keep any lock because what he is required to do is to come, sit, provide consultancy and go. Thus, for the period for which he is in his clinic, he has exclusive possession thereof. It does not matter that before starting his practice and closing the same, the premises is not even locked by him. It is nobodys case that till such time, the doctors were permitted to run their practice in the polyclinic, they were asked to go back even during the hours fixed for opening the clinic. Merely because the first Respondent being a chemist was also being benefitted in selling his medicines will not permit a tenant to allow number of doctors to sit and run their own consultancy including the Dentist who otherwise may not have anything to do with the sale of medicine and is required to fix teeth which are prepared elsewhere and not by the first Respondent or by cleaning the teeth which is the major service provided by the Dentist. Moreover, permitting a Dentist to have his own chair in a clinic where visiting hours are limited, would not make the doctor only a licencee.27. At this juncture, I may observe that user of the property by licencees are those cases where family members, a wife, or a son have been permitted to use a portion of the suit property along with the tenant who happens to be either the father or the husband or a near relative which is not the case here.28. As a matter of fact, the arrangement which was being followed between the tenant and the doctor, namely Respondent nos. 2 to 4, makes it explicit that that user of the suit premises that too of Mezzanine floor was exclusive for the time they were permitted to run their practice and must have been under a secret arrangement between the tenant and the doctors to which the landlord cannot have access and he can only infer that some kind of consideration must have passed by the sub-tenant in favour of the tenant which must be the only reason as to why the first Respondent permitted user of portion of suit property to Respondent nos. 2 to 4 on regular intervals and also permitted them to put their names outside the polyclinic including the timings of their coming. The tenant even allowed them to have their own telephones installed in the suit premises so as to facilitate the clients to have the consultancy at a time convenient to the doctor and the patient without any interference of the tenant in this regard. Such kind of arrangement cannot be termed as mere licence and must be treated as exclusive possession though for a short period and would certainly furnish a ground for eviction under Section 14(1)(b) of the Delhi Rent Control Act. Accordingly, the Trial Court has not appreciated this fine distinction of law and, therefore, the findings returned by the Trial Court suffer from material irregularity and calls for interference by this appellate court.13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forums decision was perverse and the manner in which such finding was arrived at was itself perverse. | 1 | 3,935 | 2,325 | ### Instruction:
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premises for repelling the plea of sub-letting or assignment or parting with possession. From the passage of the judgment of this Court in the case of Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. The Appellate Forum found:- 26. I may observe that the job of a doctor is basically to provide consultancy. He is not to sell any goods. He is only to examine the patients and prescribe treatment and charge his fee. For doing so aforesaid, he only requires a place where he can sit, the client can come, the doctor may have privacy and is able to write a prescription to the client and, if required, to examine him either on a dental chair in the case of a Dentists or a bed in case of other patients and nothing else. All these facilities were being made available to the doctors who came to the suit premises and that also in exclusive portion, i.e., Mezzanine floor without any interference even by the tenant. Merely because the doctors had to come at fixed hours would not make their occupation merely that of a licensee and not of a sub-tenant, because now it is a matter of common sense and common knowledge that many buildings have a common central door where a lock is put by a guard who opens the same in the morning and closes the same in the evening while everyone occupying a portion of the building uses his own portion as and when they are required to come as also it is being done in the case of a lawyer. The lawyer also comes only in the office hours and in the day is not expected to remain in his chamber. However, in the case of a lawyer, he is required to maintain a library and records and might be using his library. But in the case of a doctor, he is not required to keep any lock because what he is required to do is to come, sit, provide consultancy and go. Thus, for the period for which he is in his clinic, he has exclusive possession thereof. It does not matter that before starting his practice and closing the same, the premises is not even locked by him. It is nobodys case that till such time, the doctors were permitted to run their practice in the polyclinic, they were asked to go back even during the hours fixed for opening the clinic. Merely because the first Respondent being a chemist was also being benefitted in selling his medicines will not permit a tenant to allow number of doctors to sit and run their own consultancy including the Dentist who otherwise may not have anything to do with the sale of medicine and is required to fix teeth which are prepared elsewhere and not by the first Respondent or by cleaning the teeth which is the major service provided by the Dentist. Moreover, permitting a Dentist to have his own chair in a clinic where visiting hours are limited, would not make the doctor only a licencee. 27. At this juncture, I may observe that user of the property by licencees are those cases where family members, a wife, or a son have been permitted to use a portion of the suit property along with the tenant who happens to be either the father or the husband or a near relative which is not the case here. 28. As a matter of fact, the arrangement which was being followed between the tenant and the doctor, namely Respondent nos. 2 to 4, makes it explicit that that user of the suit premises that too of Mezzanine floor was exclusive for the time they were permitted to run their practice and must have been under a secret arrangement between the tenant and the doctors to which the landlord cannot have access and he can only infer that some kind of consideration must have passed by the sub-tenant in favour of the tenant which must be the only reason as to why the first Respondent permitted user of portion of suit property to Respondent nos. 2 to 4 on regular intervals and also permitted them to put their names outside the polyclinic including the timings of their coming. The tenant even allowed them to have their own telephones installed in the suit premises so as to facilitate the clients to have the consultancy at a time convenient to the doctor and the patient without any interference of the tenant in this regard. Such kind of arrangement cannot be termed as mere licence and must be treated as exclusive possession though for a short period and would certainly furnish a ground for eviction under Section 14(1)(b) of the Delhi Rent Control Act. Accordingly, the Trial Court has not appreciated this fine distinction of law and, therefore, the findings returned by the Trial Court suffer from material irregularity and calls for interference by this appellate court. 13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forums decision was perverse and the manner in which such finding was arrived at was itself perverse.
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maintaining over the said premises for repelling the plea of sub-letting or assignment or parting with possession. From the passage of the judgment of this Court in the case of Bharat Sales Ltd. (supra) above, it transpires that it was also the respondents obligation to demonstrate that there was no monetary consideration on the basis of which the medical practitioners were allowed to operate from the subject premises. Though, it was a chemist shop, evidence reveals that the portion of the premises of which the three medical practitioners were in occupation consisted of individual cabins and had separate telephone connections. These are the factors, on the basis of which, the Appellate Tribunal came to its conclusion against the respondents. The Appellate Forum found:-26. I may observe that the job of a doctor is basically to provide consultancy. He is not to sell any goods. He is only to examine the patients and prescribe treatment and charge his fee. For doing so aforesaid, he only requires a place where he can sit, the client can come, the doctor may have privacy and is able to write a prescription to the client and, if required, to examine him either on a dental chair in the case of a Dentists or a bed in case of other patients and nothing else. All these facilities were being made available to the doctors who came to the suit premises and that also in exclusive portion, i.e., Mezzanine floor without any interference even by the tenant. Merely because the doctors had to come at fixed hours would not make their occupation merely that of a licensee and not of a sub-tenant, because now it is a matter of common sense and common knowledge that many buildings have a common central door where a lock is put by a guard who opens the same in the morning and closes the same in the evening while everyone occupying a portion of the building uses his own portion as and when they are required to come as also it is being done in the case of a lawyer. The lawyer also comes only in the office hours and in the day is not expected to remain in his chamber. However, in the case of a lawyer, he is required to maintain a library and records and might be using his library. But in the case of a doctor, he is not required to keep any lock because what he is required to do is to come, sit, provide consultancy and go. Thus, for the period for which he is in his clinic, he has exclusive possession thereof. It does not matter that before starting his practice and closing the same, the premises is not even locked by him. It is nobodys case that till such time, the doctors were permitted to run their practice in the polyclinic, they were asked to go back even during the hours fixed for opening the clinic. Merely because the first Respondent being a chemist was also being benefitted in selling his medicines will not permit a tenant to allow number of doctors to sit and run their own consultancy including the Dentist who otherwise may not have anything to do with the sale of medicine and is required to fix teeth which are prepared elsewhere and not by the first Respondent or by cleaning the teeth which is the major service provided by the Dentist. Moreover, permitting a Dentist to have his own chair in a clinic where visiting hours are limited, would not make the doctor only a licencee.27. At this juncture, I may observe that user of the property by licencees are those cases where family members, a wife, or a son have been permitted to use a portion of the suit property along with the tenant who happens to be either the father or the husband or a near relative which is not the case here.28. As a matter of fact, the arrangement which was being followed between the tenant and the doctor, namely Respondent nos. 2 to 4, makes it explicit that that user of the suit premises that too of Mezzanine floor was exclusive for the time they were permitted to run their practice and must have been under a secret arrangement between the tenant and the doctors to which the landlord cannot have access and he can only infer that some kind of consideration must have passed by the sub-tenant in favour of the tenant which must be the only reason as to why the first Respondent permitted user of portion of suit property to Respondent nos. 2 to 4 on regular intervals and also permitted them to put their names outside the polyclinic including the timings of their coming. The tenant even allowed them to have their own telephones installed in the suit premises so as to facilitate the clients to have the consultancy at a time convenient to the doctor and the patient without any interference of the tenant in this regard. Such kind of arrangement cannot be termed as mere licence and must be treated as exclusive possession though for a short period and would certainly furnish a ground for eviction under Section 14(1)(b) of the Delhi Rent Control Act. Accordingly, the Trial Court has not appreciated this fine distinction of law and, therefore, the findings returned by the Trial Court suffer from material irregularity and calls for interference by this appellate court.13. There was no perversity in the order of the Appellate Tribunal on the basis of which the High Court could have interfered. In our view, the High Court tested the legality of the order of the Tribunal through the lens of an appellate body and not as a supervisory Court in adjudicating the application under Article 227 of the Constitution of India. This is impermissible. The finding of the High Court that the appellate forums decision was perverse and the manner in which such finding was arrived at was itself perverse.
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Standard Mills Company Limited Vs. M. Ramalingam and Another | from the book profits, the net balance at the close of the account year 1952 remaining in the hands of the company could not be sufficient to distribute dividend at the rate at which it was distributed5. Mr. Setalvad contended that in the assessment year 1951-52 relating to the account year 1950 adjustment was made in valuing the closing stock by adding to the book profit Rs. 9, 80, 162 under the head " Addition to closing stock (without adjustment of the opening stock this year) " and this amount was taken into account in computing the income of the account year 1951. Counsel says that the amount of Rs. 9, 80, 162 was profit of the year 1950 kept out of the books by depreciating the value of the closing stock and was not in truth profit of the year 1951, for which on the undistributed profits rebate was given. The argument is that the company attempted in the year 1950 to reduce its profits by undervaluing its closing stock by Rs. 9, 80, 162 and that amount which was reflected in the account of 1951 must be regarded as profit of the year 1950, and as no rebate was received in respect of that profit, section 35(10) has no application. But from the assessment order relating to the account year 1950 it is clear that the amount of Rs. 9, 80, 162 was in fact added by the Income-tax Officer and the total income was computed on that footing. In the assessment to tax of the income of the account year 1951, readjustment was made in the Stock valuations, both opening and closing. The opening stock was valued as at the figure at which the closing stock was valued for the year 1950 and for that purpose an adjustment of Rs. 9, 80, 162 was made, and the closing stock was depreciated by Rs. 12, 37, 533, and the difference was taken into account in computing the profits of that year. In this state of accounts, it is difficult to accept without full examination of the accounts the argument that the amount of Rs. 9, 80, 162 had not received the benefit of rebate in the assessment year 1952-53We are at this stage not seeking to decide any questions of fact. It is sufficient for the purpose of this appeal to demonstrate that the petition field by the company in the High Court and the affidavit of the Income-tax Officer in reply raised disputed questions of fact. The company contended that it had on hand an amount exceeding Rs. 11, 68, 000 out of the profits of the account year 1952, from which dividend could be distributed. The Income-tax Officer was of the opinion that the company had not on hand that amount as profit, because it had attempted by manipulation of the value of stock on hand to show a larger figure of profits than the amount actually earned and therefore out of the book profits the amount by which the opening stock was undervalued was deducted6. On these respective pleas a dispute on a question of fact arose, in the investigation of which it would have been necessary for the High Court to scrutinize with the aid of auditors, the accounts of the company for at least three years to ascertain whether the dividend was paid out of the net profits on hand of the year 1952 or whether the profits of the year 1951 on which rebate was given were availed of for distributing dividend. The High Court having, in the exercise of its discretion, refused to embark upon that inquiry, we would not ordinarily be justified in an appeal under article 136 in reversing that decision7. But Mr. Setalvad contended that there were two special circumstances in this case, which should persuade us to remand this appeal to the High Court for investigation : (i) that in a case which had been decided only two days after the decision under appeal, against an order passed under section 35(10) by the same Bench which decided the case of the company, an order was passed by the High Court in a petition under article 226 of the Constitution and a writ of certiorari was issued discharging the order passed by the Income-tax Officer, and (ii) that the statute provides no appeal against the order passed by the Income-tax Officer under section 35(10) to rectify what is fictionally deemed a mistake, and the company has no effective remedy against a patently unjust order. The first ground is, in our judgment, futile. If, in the circumstances of the particular case, the court was satisfied that before passing an order under section 35(10) no investigation into disputed questions of fact is necessary, it would be the duty of the court if it is otherwise satisfied that the order is erroneous or unjust on the face of the record, to grant relief in a petition under article 226 of the Constitution, and if the High Court did that, no grievance can be raised against the order. In this case, however, the High Court has declined to exercise its discretion on the ground that disputed questions of fact arose which it would not be justified in considering in a petition under article 226 of the Constitution. There is again no ground for holding without full investigation that any injustice patent or otherwise has resulted. It is true that the Income-tax Act provides no appeal against the order passed under section 35(10). But that cannot by itself be a ground for ordering the High Court to entertain a petition which, in the exercise of its discretion, the High Court has declined to entertain. It may be noticed that a party aggrieved by an order under section 35(10) is not without a remedy. An application under section 33-A(2) to the Commissioner of Income-tax for correcting the order undoubtedly lies against an order under section 35(10)The appeal therefore fails and is dismissed with costs | 0[ds]H J.1. The appellant is a public limited company incorporated under the Indian Companies Act, 1913, and has its registered office at Bombay. The company had, in the calendar year 1951, appropriated Rs. 11, 68, 000 in declaring dividend to the shareholders out or its total book profits of Rs. 55, 69, 669. For the assessment yearx Officer, Companies Circle I(2), Bombay, estimated the undistributed profits at Rs. 18, 24, 525 and allowed a rebate thereon under Part I of the First Schedule, Paragraph B, proviso 1, Finance Act, 1951, at the rate of one anna per rupee. For the assessment yearthe net profits of the company in the calendar year 1952 were determined at Rs. 31, 03, 760 and the taxable income was assessed at Rs. 12, 94, 872. In that year also the company declared Rs. 11, 68, 000 as dividend payable to the shareholders. As this amount exceeded the total income as reduced by seven annas in the rupee and a donation of Rs. 7, 500, additionalwas charged under clause (ii) of the proviso to Paragraph B, Part I, of the First Schedule of the Finance Act, 1953. This additional charge was set aside by the Appellate Tribunal by order dated August 18, 1956 TheOfficer then addressed a letter dated November 12, 1956, to the company intimating that he proposed to rectify the assessment of the yearin exercise of the powers under section 35(10) of theAct, and to withdraw the rebate, because in his view the company in distributing Rs. 11, 68, 000 as dividend had utilised the undistributed profits of the previous year held admissible to rebate. The company contended, inter alia, that it was not true that the dividend or any part thereof came out of the undistributed profits of the assessment yearBy his letter dated February 21, 1958, theOfficer informed the company that " on a study of the figures of the assessment year", it was disclosed that the net book profits amounted to Rs. 31, 03, 760 out of which Rs. 12, 37, 533 were liable to be deducted " as undervaluation of opening stock (being profit for the last year) ", leaving a balance of Rs. 18, 66, 227. Out of that amount, Rs. 8, 00, 000 were deducted as depreciation and special depreciation reserve leaving a net balance of Rs. 10, 66, 227, and deducting therefrom Rs. 7, 50, 000 as provision for taxation, Rs. 3, 16, 227 only remained as profit available for distribution. TheOfficer therefore informed the company that in his opinion the dividends had " come out of the profits of the earlier year ", represented by undervaluation of the opening stock which was the income of the previous year. The company asserted that the distribution of dividend was out of the current years profit which amounted to Rs. 11, 70, 889, and there was no ground for withdrawing the rebateTheOfficer rejected the contention of the company and declared that as against the amount of Rs. 3, 16, 227, which was the profit available for distribution, the dividend declared in the assessment yearwas Rs. 11, 68, 000 and the balance of Rs. 8, 51, 773 had come out of the undistributed profits of the year 1951 amounting to Rs. 18, 24, 525 on which rebate was allowed. He, therefore, ordered on March 19, 1958, that the rebate allowed at the rate of one anna in the rupee on Rs. 8, 51, 773 be withdrawn, and issued a demand notice for Rs. 53, 235.13 nP2. The company then presented a petition under article 226 of the Constitution before the High Court of Judicature at Bombay praying for the issue of a writ in the nature of certiorari or other writ against theOfficer calling for the record of the case and for a direction quashing the order dated March 19, 1958, holding the company liable in the sum of Rs. 53, 235, 13 nP. and the notice of demand consequent thereon. The company also prayed for the issue of a writ in the nature of mandamus ordering theOfficer to withdraw and cancel the order dated March 19, 1958, and the notice of demand consequent thereon. It was submitted by the company that the provisions of section 35(10) of the Act were ultra vires the Central Legislature in that they infringed articles 14, 19(1), (f) and (g), 31 and 265 of the Constitution, and in any event " travelled beyond the ambit of section 3 of the Act " and imposed additionalwithout reference to the total income or the rate applicable to the total income of the company, that the provisions of section 35(10) which had been added by section 19 of the Finance Act, 1956, had no application to the companys case, because the Act was not retrospective and orders which had become final and conclusive before the first April, 1956, were not covered by that provision and could not be rectified thereunder. The company also contended that the amount of Rs. 11, 68, 000 paid as dividend did not come out of the profits of the assessment yearand that there were large profits available in other years out of which the dividend was in fact paidThe petition was rejected by the High Court. Before the High Court the questions that the statute was ultra vires as infringing the constitutional provisions set out in the petition, that it travelled beyond the ambit of section 3 of theAct and that section 35(10) was inapplicable to the order rectified because it had no retrospective operation were not pressed. The primary question argued before the High Court was that the order passed under section 35(10) withdrawing the rebate granted in the previous year was not liable to be withdrawn as Rs. 11, 68, 000 declared as dividend by the company had come out of the profits of the company for that year and not out of the profits of the previous year for which benefit of rebate had been obtained.In the view of the High Court the petition raised a " controversial question of fact ", viz., whether any undistributed profits of the account year 1951 on whichrebate had been allowed had been availed of by the company for declaring dividend in the account year 1952, and to resolve that question it would be necessary to record evidence, a step which the High Court was in the exercise of its discretion not willing to adopt in a petition for a high prerogative writ. With special leave, the company has appealed to this court against the order of the HighIn this appeal Mr. Setalvad on behalf of the company did not contend that section 35 (10) is ultra vires because it infringes any constitutional provisions or is beyond the legislative power. Nor did counsel contend that section 35(10) had no retrospective operation. He concentrated his argument upon only one question, viz., that the order passed by ther disclosed an error apparent on the face of the record and it was liable to be rectified by the issue of a writ of certiorari, especially when thet did not provide an appeal against the order passed under section 35(10)Section 35(10) provides" Where, in any of the assessments for the years beginning on the 1st day of April, of the years 1948 to 1955 inclusive, a rebate ofwas allowed to a company on a part of its total income under clause (i) of the proviso to Paragraph B of Part I of the relevant Schedules to the Finance Acts specifying the rates of tax for the relevant year, and subsequently the amount on which the rebate ofwas allowed as aforesaid is availed of by the company, wholly or partly, for declaring dividends in any year, the amount or that part of the amount availed of as aforesaid, as the case may be, shall, by reason of the rebate ofallowed to the company and to the extent to which it has not actually been subjected to an additionaln accordance with the provisions of clause (ii) of the Proviso to paragraph B of Part I of the Schedules to the Finance Acts above referred to, be deemed to have been made the subject of incorrect relief under this Act, and ther shall recompute the tax payable by the company by reducing the rebate originally allowed, as if the recomputation is a rectification of a mistake apparent from the record within the meaning of this section and the provisions of) shall apply accordingly, the period of four years specified therein being reckoned from the end of the financial year in which the amount on which rebate ofwas allowed as aforesaid was availed of by the company wholly or partly for declaring dividends.There is no dispute that in the assessment yearthe company obtained rebate on the amount of undistributed profits under clause (i) of the proviso to Paragraph B of Part I of the First Schedule to the Finance Act, 1951. TheOfficer decided that the net available profits for distribution by the company in the account year 1952 were only Rs. 3, 16, 227 and without drawing upon the undistributed profits for which rebate was given in the account year 1951, the company could not distribute Rs. 11, 68, 000 as dividend. The assessment order made by theofficer for the year(account year being 1952) was, it appears, not before the High Court, but copies of that order have been annexed to the petition for special leave filed in this court. That order discloses that the company had in itsreturn disclosed Rs. 31, 03, 760 as book profits. Adjusting certain items which in the view of theOfficer were not allowable, the gross profit was Rs. 33, 37, 813. Out of this amount theOfficer deducted Rs. 12, 37, 533 under the head " undervaluation of opening stock, " and Rs. 8, 06, 086 as depreciation leaving a balance of Rs. 12, 94, 194. Adding to this amount certain gross dividends, the taxable profits of the company were computed at Rs. 12, 94, 872. But the taxable profits being subject to a first charge for liability to pay tax, the balance would in the view of theOfficer be insufficient to provide for Rs. 11, 60, 800 for distribution as dividendThe entire dispute centres round the true nature of the deduction made by theOfficer in his order under section 35(10) in the computation made by him of Rs. 12, 37, 533. TheOfficer was of the view that this amount represents the profits of the previous year, which must be deducted out of the book profits returned by the company, to show the true commercial profits. That there was undervaluation of the opening stock in the year of account 1952 was accepted by the company. From the order for the assessment yearit is apparent that the closing stock in 1951 had been enhanced by Rs. 12, 37, 533 and against that amount the enhanced value of the opening stock of Rs. 9, 80, 162 was debited. If to remove the discrepancy between the valuation of the closing stock of 1951, and the valuation of the opening stock in the year 1952, this amount of Rs. 12, 37, 533 is deducted from the book profits, the net balance at the close of the account year 1952 remaining in the hands of the company could not be sufficient to distribute dividend at the rate at which it was distributed5.Mr. Setalvad contended that in the assessment yearrelating to the account year 1950 adjustment was made in valuing the closing stock by adding to the book profit Rs. 9, 80, 162 under the head " Addition to closing stock (without adjustment of the opening stock this year) " and this amount was taken into account in computing the income of the account year 1951. Counsel says that the amount of Rs. 9, 80, 162 was profit of the year 1950 kept out of the books by depreciating the value of the closing stock and was not in truth profit of the year 1951, for which on the undistributed profits rebate was given. The argument is that the company attempted in the year 1950 to reduce its profits by undervaluing its closing stock by Rs. 9, 80, 162 and that amount which was reflected in the account of 1951 must be regarded as profit of the year 1950, and as no rebate was received in respect of that profit, section 35(10) has no application. But from the assessment order relating to the account year 1950 it is clear that the amount of Rs. 9, 80, 162 was in fact added by ther and the total income was computed on that footing. In the assessment to tax of the income of the account year 1951, readjustment was made in the Stock valuations, both opening and closing. The opening stock was valued as at the figure at which the closing stock was valued for the year 1950 and for that purpose an adjustment of Rs. 9, 80, 162 was made, and the closing stock was depreciated by Rs. 12, 37, 533, and the difference was taken into account in computing the profits of that year. In this state of accounts, it is difficult to accept without full examination of the accounts the argument that the amount of Rs. 9, 80, 162 had not received the benefit of rebate in the assessment yeare at this stage not seeking to decide any questions of fact. It is sufficient for the purpose of this appeal to demonstrate that the petition field by the company in the High Court and the affidavit of ther in reply raised disputed questions of fact. The company contended that it had on hand an amount exceeding Rs. 11, 68, 000 out of the profits of the account year 1952, from which dividend could be distributed. Ther was of the opinion that the company had not on hand that amount as profit, because it had attempted by manipulation of the value of stock on hand to show a larger figure of profits than the amount actually earned and therefore out of the book profits the amount by which the opening stock was undervalued wasOn these respective pleas a dispute on a question of fact arose, in the investigation of which it would have been necessary for the High Court to scrutinize with the aid of auditors, the accounts of the company for at least three years to ascertain whether the dividend was paid out of the net profits on hand of the year 1952 or whether the profits of the year 1951 on which rebate was given were availed of for distributing dividend. The High Court having, in the exercise of its discretion, refused to embark upon that inquiry, we would not ordinarily be justified in an appeal under article 136 in reversing thatfirst ground is, in our judgment, futile. If, in the circumstances of the particular case, the court was satisfied that before passing an order under section 35(10) no investigation into disputed questions of fact is necessary, it would be the duty of the court if it is otherwise satisfied that the order is erroneous or unjust on the face of the record, to grant relief in a petition under article 226 of the Constitution, and if the High Court did that, no grievance can be raised against the order. In this case, however, the High Court has declined to exercise its discretion on the ground that disputed questions of fact arose which it would not be justified in considering in a petition under article 226 of the Constitution. There is again no ground for holding without full investigation that any injustice patent or otherwise has resulted. It is true that theAct provides no appeal against the order passed under section 35(10). But that cannot by itself be a ground for ordering the High Court to entertain a petition which, in the exercise of its discretion, the High Court has declined to entertain. It may be noticed that a party aggrieved by an order under section 35(10) is not without a remedy. An application under sectionto the Commissioner offor correcting the order undoubtedly lies against an order under section 35(10)The appeal therefore fails and is dismissed with costs | 0 | 3,351 | 3,091 | ### 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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from the book profits, the net balance at the close of the account year 1952 remaining in the hands of the company could not be sufficient to distribute dividend at the rate at which it was distributed5. Mr. Setalvad contended that in the assessment year 1951-52 relating to the account year 1950 adjustment was made in valuing the closing stock by adding to the book profit Rs. 9, 80, 162 under the head " Addition to closing stock (without adjustment of the opening stock this year) " and this amount was taken into account in computing the income of the account year 1951. Counsel says that the amount of Rs. 9, 80, 162 was profit of the year 1950 kept out of the books by depreciating the value of the closing stock and was not in truth profit of the year 1951, for which on the undistributed profits rebate was given. The argument is that the company attempted in the year 1950 to reduce its profits by undervaluing its closing stock by Rs. 9, 80, 162 and that amount which was reflected in the account of 1951 must be regarded as profit of the year 1950, and as no rebate was received in respect of that profit, section 35(10) has no application. But from the assessment order relating to the account year 1950 it is clear that the amount of Rs. 9, 80, 162 was in fact added by the Income-tax Officer and the total income was computed on that footing. In the assessment to tax of the income of the account year 1951, readjustment was made in the Stock valuations, both opening and closing. The opening stock was valued as at the figure at which the closing stock was valued for the year 1950 and for that purpose an adjustment of Rs. 9, 80, 162 was made, and the closing stock was depreciated by Rs. 12, 37, 533, and the difference was taken into account in computing the profits of that year. In this state of accounts, it is difficult to accept without full examination of the accounts the argument that the amount of Rs. 9, 80, 162 had not received the benefit of rebate in the assessment year 1952-53We are at this stage not seeking to decide any questions of fact. It is sufficient for the purpose of this appeal to demonstrate that the petition field by the company in the High Court and the affidavit of the Income-tax Officer in reply raised disputed questions of fact. The company contended that it had on hand an amount exceeding Rs. 11, 68, 000 out of the profits of the account year 1952, from which dividend could be distributed. The Income-tax Officer was of the opinion that the company had not on hand that amount as profit, because it had attempted by manipulation of the value of stock on hand to show a larger figure of profits than the amount actually earned and therefore out of the book profits the amount by which the opening stock was undervalued was deducted6. On these respective pleas a dispute on a question of fact arose, in the investigation of which it would have been necessary for the High Court to scrutinize with the aid of auditors, the accounts of the company for at least three years to ascertain whether the dividend was paid out of the net profits on hand of the year 1952 or whether the profits of the year 1951 on which rebate was given were availed of for distributing dividend. The High Court having, in the exercise of its discretion, refused to embark upon that inquiry, we would not ordinarily be justified in an appeal under article 136 in reversing that decision7. But Mr. Setalvad contended that there were two special circumstances in this case, which should persuade us to remand this appeal to the High Court for investigation : (i) that in a case which had been decided only two days after the decision under appeal, against an order passed under section 35(10) by the same Bench which decided the case of the company, an order was passed by the High Court in a petition under article 226 of the Constitution and a writ of certiorari was issued discharging the order passed by the Income-tax Officer, and (ii) that the statute provides no appeal against the order passed by the Income-tax Officer under section 35(10) to rectify what is fictionally deemed a mistake, and the company has no effective remedy against a patently unjust order. The first ground is, in our judgment, futile. If, in the circumstances of the particular case, the court was satisfied that before passing an order under section 35(10) no investigation into disputed questions of fact is necessary, it would be the duty of the court if it is otherwise satisfied that the order is erroneous or unjust on the face of the record, to grant relief in a petition under article 226 of the Constitution, and if the High Court did that, no grievance can be raised against the order. In this case, however, the High Court has declined to exercise its discretion on the ground that disputed questions of fact arose which it would not be justified in considering in a petition under article 226 of the Constitution. There is again no ground for holding without full investigation that any injustice patent or otherwise has resulted. It is true that the Income-tax Act provides no appeal against the order passed under section 35(10). But that cannot by itself be a ground for ordering the High Court to entertain a petition which, in the exercise of its discretion, the High Court has declined to entertain. It may be noticed that a party aggrieved by an order under section 35(10) is not without a remedy. An application under section 33-A(2) to the Commissioner of Income-tax for correcting the order undoubtedly lies against an order under section 35(10)The appeal therefore fails and is dismissed with costs
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centres round the true nature of the deduction made by theOfficer in his order under section 35(10) in the computation made by him of Rs. 12, 37, 533. TheOfficer was of the view that this amount represents the profits of the previous year, which must be deducted out of the book profits returned by the company, to show the true commercial profits. That there was undervaluation of the opening stock in the year of account 1952 was accepted by the company. From the order for the assessment yearit is apparent that the closing stock in 1951 had been enhanced by Rs. 12, 37, 533 and against that amount the enhanced value of the opening stock of Rs. 9, 80, 162 was debited. If to remove the discrepancy between the valuation of the closing stock of 1951, and the valuation of the opening stock in the year 1952, this amount of Rs. 12, 37, 533 is deducted from the book profits, the net balance at the close of the account year 1952 remaining in the hands of the company could not be sufficient to distribute dividend at the rate at which it was distributed5.Mr. Setalvad contended that in the assessment yearrelating to the account year 1950 adjustment was made in valuing the closing stock by adding to the book profit Rs. 9, 80, 162 under the head " Addition to closing stock (without adjustment of the opening stock this year) " and this amount was taken into account in computing the income of the account year 1951. Counsel says that the amount of Rs. 9, 80, 162 was profit of the year 1950 kept out of the books by depreciating the value of the closing stock and was not in truth profit of the year 1951, for which on the undistributed profits rebate was given. The argument is that the company attempted in the year 1950 to reduce its profits by undervaluing its closing stock by Rs. 9, 80, 162 and that amount which was reflected in the account of 1951 must be regarded as profit of the year 1950, and as no rebate was received in respect of that profit, section 35(10) has no application. But from the assessment order relating to the account year 1950 it is clear that the amount of Rs. 9, 80, 162 was in fact added by ther and the total income was computed on that footing. In the assessment to tax of the income of the account year 1951, readjustment was made in the Stock valuations, both opening and closing. The opening stock was valued as at the figure at which the closing stock was valued for the year 1950 and for that purpose an adjustment of Rs. 9, 80, 162 was made, and the closing stock was depreciated by Rs. 12, 37, 533, and the difference was taken into account in computing the profits of that year. In this state of accounts, it is difficult to accept without full examination of the accounts the argument that the amount of Rs. 9, 80, 162 had not received the benefit of rebate in the assessment yeare at this stage not seeking to decide any questions of fact. It is sufficient for the purpose of this appeal to demonstrate that the petition field by the company in the High Court and the affidavit of ther in reply raised disputed questions of fact. The company contended that it had on hand an amount exceeding Rs. 11, 68, 000 out of the profits of the account year 1952, from which dividend could be distributed. Ther was of the opinion that the company had not on hand that amount as profit, because it had attempted by manipulation of the value of stock on hand to show a larger figure of profits than the amount actually earned and therefore out of the book profits the amount by which the opening stock was undervalued wasOn these respective pleas a dispute on a question of fact arose, in the investigation of which it would have been necessary for the High Court to scrutinize with the aid of auditors, the accounts of the company for at least three years to ascertain whether the dividend was paid out of the net profits on hand of the year 1952 or whether the profits of the year 1951 on which rebate was given were availed of for distributing dividend. The High Court having, in the exercise of its discretion, refused to embark upon that inquiry, we would not ordinarily be justified in an appeal under article 136 in reversing thatfirst ground is, in our judgment, futile. If, in the circumstances of the particular case, the court was satisfied that before passing an order under section 35(10) no investigation into disputed questions of fact is necessary, it would be the duty of the court if it is otherwise satisfied that the order is erroneous or unjust on the face of the record, to grant relief in a petition under article 226 of the Constitution, and if the High Court did that, no grievance can be raised against the order. In this case, however, the High Court has declined to exercise its discretion on the ground that disputed questions of fact arose which it would not be justified in considering in a petition under article 226 of the Constitution. There is again no ground for holding without full investigation that any injustice patent or otherwise has resulted. It is true that theAct provides no appeal against the order passed under section 35(10). But that cannot by itself be a ground for ordering the High Court to entertain a petition which, in the exercise of its discretion, the High Court has declined to entertain. It may be noticed that a party aggrieved by an order under section 35(10) is not without a remedy. An application under sectionto the Commissioner offor correcting the order undoubtedly lies against an order under section 35(10)The appeal therefore fails and is dismissed with costs
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Om Prakash Vs. Lauti Ram and Another | SHAH, J.1. This appeal against the decree passed by the High Court of Punjab in second appeal is filed with special leave. The plaintiff and the defendants entered into a partnership agreement on October 30, 1947, for working a farm. Disputes arose between the partners and the plaintiffs sued for dissolution and account of the partnership. A preliminary decree was passed on June 30, 1952, and accounts were directed to be taken. The Trial Court passed a decree in favour of the defendants for a sum of Rs. 2, 488-7-9 due on taking the account of the partnership transactions. The Trial Court dismissed the defendants claim that they were entitled to get a lease in respect of an area of land in respect of which there was a covenant in the partnership deed because the covenant was indefinite. In appeal to the District Court the order passed by the Trial Court dismissing the defendants claim for allotment of land by way of lease was rejected. The plaintiffs appeal against the amount decreed against him was allowed and it was declared that nothing was due on taking account of the partnership dealing to either party. The defendants appealed to the High Court of Punjab. In appeal the High Court observed that Ext. D/2 which is the book of account on which reliance was placed by the plaintiff had uniformly been accepted by the parties as the basis on which the partnership transactions were carried out. The High Court further held on an interpretation of the terms of the agreement that there was no indefiniteness in the principal terms of the agreement. In the view of the High Court "the area of land to be let out was of plaintiffs volition or defendants choosing with upper limit of 150 bighas the lower limit of 100 bighas". The price of the land and the share of the crops were also, in the view of the High Court determinable keeping in view the prevailing market rate. Even though these terms have not defined the High Court was of the view that the contract could not fail either because the period of lease had not been indicated or the other terms were not definitely set out in the partnership agreement. The High Court accordingly set aside the decree passed by the District Court and remanded the case for taking an account on the footing of Ext. D/2 and also for determination of the area of land which was to be given to the defendants under the terms of the agreement. The plaintiff approached this Court with special leave.2. Article 136 of the Constitution does not give a right to a party to appeal to this Court. Normally this court will entertain an appeal against a decree passed in second appeal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be a precedent for guidance for determination of similar disputes in other cases. The Court, may, if it appears that substantial injustice has resulted or that there had been no proper trial of the case or other similar reasons interfere with the order or the decree passed by the High Court in second appeal. But the right to appeal to this Court is not as of right and the mere fact that some question of law arises out of the decision of the High Court will not enable a party to claim a right to appeal to this Court.3. In the present case the High Court has rightly pointed out that the parties had accepted Ext. D/2 on the basis of which account had to be taken. The District Court discarded Ext. D/2 and the High Court was, in our judgment, right in holding that the District Court acted improperly in doing so. If the parties had acted on the basis of Ext. D/2 there is no reason why the account should not be taken on the footing of Ext. D/2. In the terms of the agreement there may be some indefiniteness; but the High Court was of the view that the area of the land would have to be determined upon "the plaintiffs volition and defendants choosing between the two limits of 150 bighas and 100 bighas". The price to be paid and the rent or the share of the crops will it is true have to be determined having regard to the terms of the agreement with prevailing market-value, but it cannot be said that the terms are so indefinite that notwithstanding the agreement by the plaintiff he will not be compelled to carry out terms of the agreement. | 0[ds]2. Article 136 of the Constitution does not give a right to a party to appeal to this Court. Normally this court will entertain an appeal against a decree passed in second appeal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be a precedent for guidance for determination of similar disputes in other cases. The Court, may, if it appears that substantial injustice has resulted or that there had been no proper trial of the case or other similar reasons interfere with the order or the decree passed by the High Court in second appeal. But the right to appeal to this Court is not as of right and the mere fact that some question of law arises out of the decision of the High Court will not enable a party to claim a right to appeal to this Court.3. In the present case the High Court has rightly pointed out that the parties had accepted Ext. D/2 on the basis of which account had to be taken. The District Court discarded Ext. D/2 and the High Court was, in our judgment, right in holding that the District Court acted improperly in doing so. If the parties had acted on the basis of Ext. D/2 there is no reason why the account should not be taken on the footing of Ext. D/2. In the terms of the agreement there may be some indefiniteness; but the High Court was of the view that the area of the land would have to be determined upon "the plaintiffs volition and defendants choosing between the two limits of 150 bighas and 100 bighas". The price to be paid and the rent or the share of the crops will it is true have to be determined having regard to the terms of the agreement with prevailingbut it cannot be said that the terms are so indefinite that notwithstanding the agreement by the plaintiff he will not be compelled to carry out terms of the agreement. | 0 | 831 | 372 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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SHAH, J.1. This appeal against the decree passed by the High Court of Punjab in second appeal is filed with special leave. The plaintiff and the defendants entered into a partnership agreement on October 30, 1947, for working a farm. Disputes arose between the partners and the plaintiffs sued for dissolution and account of the partnership. A preliminary decree was passed on June 30, 1952, and accounts were directed to be taken. The Trial Court passed a decree in favour of the defendants for a sum of Rs. 2, 488-7-9 due on taking the account of the partnership transactions. The Trial Court dismissed the defendants claim that they were entitled to get a lease in respect of an area of land in respect of which there was a covenant in the partnership deed because the covenant was indefinite. In appeal to the District Court the order passed by the Trial Court dismissing the defendants claim for allotment of land by way of lease was rejected. The plaintiffs appeal against the amount decreed against him was allowed and it was declared that nothing was due on taking account of the partnership dealing to either party. The defendants appealed to the High Court of Punjab. In appeal the High Court observed that Ext. D/2 which is the book of account on which reliance was placed by the plaintiff had uniformly been accepted by the parties as the basis on which the partnership transactions were carried out. The High Court further held on an interpretation of the terms of the agreement that there was no indefiniteness in the principal terms of the agreement. In the view of the High Court "the area of land to be let out was of plaintiffs volition or defendants choosing with upper limit of 150 bighas the lower limit of 100 bighas". The price of the land and the share of the crops were also, in the view of the High Court determinable keeping in view the prevailing market rate. Even though these terms have not defined the High Court was of the view that the contract could not fail either because the period of lease had not been indicated or the other terms were not definitely set out in the partnership agreement. The High Court accordingly set aside the decree passed by the District Court and remanded the case for taking an account on the footing of Ext. D/2 and also for determination of the area of land which was to be given to the defendants under the terms of the agreement. The plaintiff approached this Court with special leave.2. Article 136 of the Constitution does not give a right to a party to appeal to this Court. Normally this court will entertain an appeal against a decree passed in second appeal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be a precedent for guidance for determination of similar disputes in other cases. The Court, may, if it appears that substantial injustice has resulted or that there had been no proper trial of the case or other similar reasons interfere with the order or the decree passed by the High Court in second appeal. But the right to appeal to this Court is not as of right and the mere fact that some question of law arises out of the decision of the High Court will not enable a party to claim a right to appeal to this Court.3. In the present case the High Court has rightly pointed out that the parties had accepted Ext. D/2 on the basis of which account had to be taken. The District Court discarded Ext. D/2 and the High Court was, in our judgment, right in holding that the District Court acted improperly in doing so. If the parties had acted on the basis of Ext. D/2 there is no reason why the account should not be taken on the footing of Ext. D/2. In the terms of the agreement there may be some indefiniteness; but the High Court was of the view that the area of the land would have to be determined upon "the plaintiffs volition and defendants choosing between the two limits of 150 bighas and 100 bighas". The price to be paid and the rent or the share of the crops will it is true have to be determined having regard to the terms of the agreement with prevailing market-value, but it cannot be said that the terms are so indefinite that notwithstanding the agreement by the plaintiff he will not be compelled to carry out terms of the agreement.
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2. Article 136 of the Constitution does not give a right to a party to appeal to this Court. Normally this court will entertain an appeal against a decree passed in second appeal if a substantial question of law of general or public importance arises which may not only determine the dispute between the parties but will be a precedent for guidance for determination of similar disputes in other cases. The Court, may, if it appears that substantial injustice has resulted or that there had been no proper trial of the case or other similar reasons interfere with the order or the decree passed by the High Court in second appeal. But the right to appeal to this Court is not as of right and the mere fact that some question of law arises out of the decision of the High Court will not enable a party to claim a right to appeal to this Court.3. In the present case the High Court has rightly pointed out that the parties had accepted Ext. D/2 on the basis of which account had to be taken. The District Court discarded Ext. D/2 and the High Court was, in our judgment, right in holding that the District Court acted improperly in doing so. If the parties had acted on the basis of Ext. D/2 there is no reason why the account should not be taken on the footing of Ext. D/2. In the terms of the agreement there may be some indefiniteness; but the High Court was of the view that the area of the land would have to be determined upon "the plaintiffs volition and defendants choosing between the two limits of 150 bighas and 100 bighas". The price to be paid and the rent or the share of the crops will it is true have to be determined having regard to the terms of the agreement with prevailingbut it cannot be said that the terms are so indefinite that notwithstanding the agreement by the plaintiff he will not be compelled to carry out terms of the agreement.
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Union of India and Others Vs. E. Merck (India) | 1. The respondent-Company manufactures certain medicines for which it was liable to pay excise duty. There was a dispute about the rate at which excise duty was payable by it on its products. The dispute came to be resolved finally by an order of Customs, Excise and Gold (Control) Appellate Tribunal dated 22-4-1983 in favour of the respondent. The direction given by the Tribunal was to reassess the duty payable by the respondent on the correct basis indicated by the Tribunal. On reassessment of the respondents liability being then made on that basis, refund of the excess duty paid by the respondent was made on 16-7-1984. The respondent then filed Writ Petition No. 5096 of 1984 in the Bombay High Court claiming Rs. 9, 34, 255.85 as interest @ 18% p.a. on the excess amount of duty which was liable to be refunded. In the writ petition, the claim for payment of interest was based on the ground of wrongful retention of the excess amount by the Revenue, the retention being unlawful, illegal, mala fide and arbitrary. The High Court accepted the respondents claim and allowed the writ petition issuing a writ of mandamus directing the Revenue to pay interest @ 12% on the amount of excess duty refunded to the respondent. The interest was directed to be paid for the period commencing on 21-1-1974 till payment. This appeal by special leave is filed by the Revenue against that order 2. We have indicated the only basis on which the claim for payment of interest was made in the writ petition filed under Article 226 of the Constitution, and on which the writ of mandamus was issued by the High Court. The question, therefore, is whether there was a foundation laid in the writ petition for issuance of a writ of mandamus3. Admittedly, there is no statutory basis for the claim of interest made by the respondent in its writ petition inasmuch as there is no provision in the statute imposing an obligation on the Revenue to pay interest on the amount refunded. The respondents claim for interest was also not based on any other statutory provision4. In short, there is no statutory or legal basis for making the claim of interest indicated in the writ petition to furnish a ground for issuance of a writ of mandamus. We may also add that the Tribunals order did not by itself indicate the precise liability of the Revenue to refund any specific amount to the respondent so as to give rise thereby to a liability to refund any specified amount on the date of the Tribunals order5. In other words, in the facts and circumstances of this case, there is no basis on which a legal obligation of the Revenue to refund a specific sum of money on a particular date is shown to have arisen to provide foundation necessary for issuance of a writ of mandamus. It is, therefore, unnecessary to examine in the present case the larger question urged on behalf of the respondent that the liability of payment of interest on the amount of excess duty refunded may, in a given case, give rise to a legal obligation providing foundation for issuance of a writ of mandamus to direct payment of interest also on the amount refunded | 1[ds]3. Admittedly, there is no statutory basis for the claim of interest made by the respondent in its writ petition inasmuch as there is no provision in the statute imposing an obligation on the Revenue to pay interest on the amount refunded. The respondents claim for interest was also not based on any other statutory provision4. In short, there is no statutory or legal basis for making the claim of interest indicated in the writ petition to furnish a ground for issuance of a writ of mandamus. We may also add that the Tribunals order did not by itself indicate the precise liability of the Revenue to refund any specific amount to the respondent so as to give rise thereby to a liability to refund any specified amount on the date of the Tribunals order5. In other words, in the facts and circumstances of this case, there is no basis on which a legal obligation of the Revenue to refund a specific sum of money on a particular date is shown to have arisen to provide foundation necessary for issuance of a writ of mandamus. It is, therefore, unnecessary to examine in the present case the larger question urged on behalf of the respondent that the liability of payment of interest on the amount of excess duty refunded may, in a given case, give rise to a legal obligation providing foundation for issuance of a writ of mandamus to direct payment of interest also on the amount refunded | 1 | 593 | 266 | ### 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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1. The respondent-Company manufactures certain medicines for which it was liable to pay excise duty. There was a dispute about the rate at which excise duty was payable by it on its products. The dispute came to be resolved finally by an order of Customs, Excise and Gold (Control) Appellate Tribunal dated 22-4-1983 in favour of the respondent. The direction given by the Tribunal was to reassess the duty payable by the respondent on the correct basis indicated by the Tribunal. On reassessment of the respondents liability being then made on that basis, refund of the excess duty paid by the respondent was made on 16-7-1984. The respondent then filed Writ Petition No. 5096 of 1984 in the Bombay High Court claiming Rs. 9, 34, 255.85 as interest @ 18% p.a. on the excess amount of duty which was liable to be refunded. In the writ petition, the claim for payment of interest was based on the ground of wrongful retention of the excess amount by the Revenue, the retention being unlawful, illegal, mala fide and arbitrary. The High Court accepted the respondents claim and allowed the writ petition issuing a writ of mandamus directing the Revenue to pay interest @ 12% on the amount of excess duty refunded to the respondent. The interest was directed to be paid for the period commencing on 21-1-1974 till payment. This appeal by special leave is filed by the Revenue against that order 2. We have indicated the only basis on which the claim for payment of interest was made in the writ petition filed under Article 226 of the Constitution, and on which the writ of mandamus was issued by the High Court. The question, therefore, is whether there was a foundation laid in the writ petition for issuance of a writ of mandamus3. Admittedly, there is no statutory basis for the claim of interest made by the respondent in its writ petition inasmuch as there is no provision in the statute imposing an obligation on the Revenue to pay interest on the amount refunded. The respondents claim for interest was also not based on any other statutory provision4. In short, there is no statutory or legal basis for making the claim of interest indicated in the writ petition to furnish a ground for issuance of a writ of mandamus. We may also add that the Tribunals order did not by itself indicate the precise liability of the Revenue to refund any specific amount to the respondent so as to give rise thereby to a liability to refund any specified amount on the date of the Tribunals order5. In other words, in the facts and circumstances of this case, there is no basis on which a legal obligation of the Revenue to refund a specific sum of money on a particular date is shown to have arisen to provide foundation necessary for issuance of a writ of mandamus. It is, therefore, unnecessary to examine in the present case the larger question urged on behalf of the respondent that the liability of payment of interest on the amount of excess duty refunded may, in a given case, give rise to a legal obligation providing foundation for issuance of a writ of mandamus to direct payment of interest also on the amount refunded
### Response:
1
### Explanation:
3. Admittedly, there is no statutory basis for the claim of interest made by the respondent in its writ petition inasmuch as there is no provision in the statute imposing an obligation on the Revenue to pay interest on the amount refunded. The respondents claim for interest was also not based on any other statutory provision4. In short, there is no statutory or legal basis for making the claim of interest indicated in the writ petition to furnish a ground for issuance of a writ of mandamus. We may also add that the Tribunals order did not by itself indicate the precise liability of the Revenue to refund any specific amount to the respondent so as to give rise thereby to a liability to refund any specified amount on the date of the Tribunals order5. In other words, in the facts and circumstances of this case, there is no basis on which a legal obligation of the Revenue to refund a specific sum of money on a particular date is shown to have arisen to provide foundation necessary for issuance of a writ of mandamus. It is, therefore, unnecessary to examine in the present case the larger question urged on behalf of the respondent that the liability of payment of interest on the amount of excess duty refunded may, in a given case, give rise to a legal obligation providing foundation for issuance of a writ of mandamus to direct payment of interest also on the amount refunded
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NARESH CHANDRA BHARDWAJ Vs. BANK OF INDIA | concerned employee and the co- delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. (emphasis supplied) 8. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, i.e., where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity. 9. We now proceed to analyse the facts of the present case in the contours of the aforesaid principles. 10. If we look to the case of the other two officers, the likely loss to the Bank was assessed in the range of about Rs.77.70 lakh in the case of Mr. R.K. Mishra and Rs.39.74 lakh in the case of Mr. V .K. Srivastava. The amount is, at least, not very different from one as in the case of Mr. R.K. Mishra. However, what is more important is the role performed. Mr. R.K. Mishra and Mr. V .K. Srivastava were both the sanctioning authorities in respect of the loans in questions and there were four loans each involved in the case of both the officers. In the case of the appellant, he was the sanctioning authority in three loans while he was the recommending authority in two loans. 11. In order to appreciate this aspect, we would first refer to the findings on the charges against the appellant. It is noteworthy that no mala fide was proved. It was found that one Mr. Vikram Dixit alias Mr. Vinny Sondhi was the key person who is a cheat and has defrauded many organisations by proving his identity through different identity cards acquired by him fraudulently. Third important aspect is that the approved advocates and valuers submitted a report which was relied upon by the Bank officials. These actually appear to be a common thread in all the three cases. 12. Now turning to the recommendations of the Chief Vigilance Officer dated 20.8.2009, it would be relevant to reproduce para 6.2, which reads as under: 6.2 The DA has recommended imposition of the major penalty of Compulsory Retirement on all the three Officers. On perusal of the records, we find that S/Shri V .K. Srivastava and R.K. Mishra are P.F. optees and Shri N.C. Bhardwaj is a pension optee. Earlier, we had proposed Removal from Service in respect of all the three Officer, looking to the fact that in case compulsory retirement is imposed on Shri Bhardwaj, he would be entitled for compulsory retirement person. Looking to the seriousness of the acts of misconduct committed by Shri Bhardwaj, we feel that Removal from Service should be the appropriate penalty in his case. It is so because apart from his involvement as recommending authority in 2 cases at Harsh Nagar Branch, he had sanctioned 3 more loans from Lal Bangla Branch to accommodate the same party i.e., Shri Vikram Dixit. 13. A reading of the aforesaid shows that while earlier the proposal was for removal from service for all the three officers, in respect of other two officers it was converted into compulsory retirement while not doing so in the case of the appellant. The rationale is stated to be the seriousness of the acts of misconduct of the appellant and the fact that he was the recommending authority in two cases and the sanctioning authority in three other cases. However, the real reason comes out from the earlier part of the paragraph, which is that while the other two officers were provident fund optees, the appellant was a pension optee. It is, however, not explained in any of the pleadings before us as to what is the financial ramification in respect of the two options and as to whether the appellant would get a greater financial benefit by reason of being a pension optee. 14. It is difficult for us to accept that there is any difference in the conduct of the three officers as would justify this differentiation in punishment. The most important fact in this behalf to notice is that as per the counter affidavit submitted by the respondents, in their own wisdom they have agreed to grant compassionate allowance to the appellant, which is 2/3 rd of the full pension as would be payable to him had the punishment of removal from service not been imposed on him. What is also important to note is that it is further submitted in the same paragraph 8.2 that even if the punishment is modified to compulsory retirement the appellant would receive 2/3 rd of the full pension which is equivalent to the 2/3 rd of the full pension as received for compassionate allowance. The appellant has been given the maximum benefit under Regulations 31 & 33 of the Pension Regulations 1995 dealing with compassionate allowance. 8.2. …...It is further submitted that even in case a punishment of Removal from service is imposed upon the Petitioner is modified to that of Compulsory Retirement, he would receive 2/3 rd of the Full Pension, which is equivalent to the 2/3 rd of Full Pension which he is receiving at present as a Compassionate Allowance. 15. We fail to appreciate that once there is no financial difference and the role is practically identical, why the respondents hesitated themselves to convert the punishment inflicted on the appellant from one of removal from service which shall not be disqualification for future employment to compulsory retirement. The only aspect is the nature of punishment which appears to tar the appellant more than the other two officers without any financial implication for the respondent-Bank. | 1[ds]6. It is trite to say that the domain of the courts on the issue of quantum of punishment is very limited. It is the disciplinary authority or the appellate authority, which decides the nature of punishment keeping in mind the seriousness of the misconduct committed. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. However, one other cause for interference can be where the plea raised is of parity in punishment but then the pre-requisite would be that the parity has to be in the nature of charges made and held against the delinquent employee and the conduct of the employee post the incident. It is the latter aspect which is sought to be advanced by learned counsel for the appellant by relying upon the judgment in Rajendra Yadav v. State of Madhya Pradesh & Ors. (2013) 3 SCC 73. On this very aspect learned counsel for the respondents drew out attention to a subsequent judgment in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) & Anr. v. Rajendra Singh (2013) 12 SCC 372 which had taken note of the earlier judgment referred to aforesaid8. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, i.e., where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity10. If we look to the case of the other two officers, the likely loss to the Bank was assessed in the range of about Rs.77.70 lakh in the case of Mr. R.K. Mishra and Rs.39.74 lakh in the case of Mr. V .K. Srivastava. The amount is, at least, not very different from one as in the case of Mr. R.K. Mishra. However, what is more important is the role performed. Mr. R.K. Mishra and Mr. V .K. Srivastava were both the sanctioning authorities in respect of the loans in questions and there were four loans each involved in the case of both the officers. In the case of the appellant, he was the sanctioning authority in three loans while he was the recommending authority in two loans11. In order to appreciate this aspect, we would first refer to the findings on the charges against the appellant. It is noteworthy that no mala fide was proved. It was found that one Mr. Vikram Dixit alias Mr. Vinny Sondhi was the key person who is a cheat and has defrauded many organisations by proving his identity through different identity cards acquired by him fraudulently. Third important aspect is that the approved advocates and valuers submitted a report which was relied upon by the Bank officials. These actually appear to be a common thread in all the three cases13. A reading of the aforesaid shows that while earlier the proposal was for removal from service for all the three officers, in respect of other two officers it was converted into compulsory retirement while not doing so in the case of the appellant. The rationale is stated to be the seriousness of the acts of misconduct of the appellant and the fact that he was the recommending authority in two cases and the sanctioning authority in three other cases. However, the real reason comes out from the earlier part of the paragraph, which is that while the other two officers were provident fund optees, the appellant was a pension optee. It is, however, not explained in any of the pleadings before us as to what is the financial ramification in respect of the two options and as to whether the appellant would get a greater financial benefit by reason of being a pension optee14. It is difficult for us to accept that there is any difference in the conduct of the three officers as would justify this differentiation in punishment. The most important fact in this behalf to notice is that as per the counter affidavit submitted by the respondents, in their own wisdom they have agreed to grant compassionate allowance to the appellant, which is 2/3 rd of the full pension as would be payable to him had the punishment of removal from service not been imposed on him. What is also important to note is that it is further submitted in the same paragraph 8.2 that even if the punishment is modified to compulsory retirement the appellant would receive 2/3 rd of the full pension which is equivalent to the 2/3 rd of the full pension as received for compassionate allowance. The appellant has been given the maximum benefit under Regulations 31 & 33 of the Pension Regulations 1995 dealing with compassionate allowance8.2. …...It is further submitted that even in case a punishment of Removal from service is imposed upon the Petitioner is modified to that of Compulsory Retirement, he would receive 2/3 rd of the Full Pension, which is equivalent to the 2/3 rd of Full Pension which he is receiving at present as a Compassionate Allowance15. We fail to appreciate that once there is no financial difference and the role is practically identical, why the respondents hesitated themselves to convert the punishment inflicted on the appellant from one of removal from service which shall not be disqualification for future employment to compulsory retirement. The only aspect is the nature of punishment which appears to tar the appellant more than the other two officers without any financial implication for the respondent-Bank. | 1 | 1,986 | 1,044 | ### 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:
concerned employee and the co- delinquent are equally placed. However, there has to be a complete parity between the two, not only in respect of nature of charge but subsequent conduct as well after the service of charge sheet in the two cases. If co-delinquent accepts the charges, indicating remorse with unqualified apology lesser punishment to him would be justifiable. (emphasis supplied) 8. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, i.e., where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity. 9. We now proceed to analyse the facts of the present case in the contours of the aforesaid principles. 10. If we look to the case of the other two officers, the likely loss to the Bank was assessed in the range of about Rs.77.70 lakh in the case of Mr. R.K. Mishra and Rs.39.74 lakh in the case of Mr. V .K. Srivastava. The amount is, at least, not very different from one as in the case of Mr. R.K. Mishra. However, what is more important is the role performed. Mr. R.K. Mishra and Mr. V .K. Srivastava were both the sanctioning authorities in respect of the loans in questions and there were four loans each involved in the case of both the officers. In the case of the appellant, he was the sanctioning authority in three loans while he was the recommending authority in two loans. 11. In order to appreciate this aspect, we would first refer to the findings on the charges against the appellant. It is noteworthy that no mala fide was proved. It was found that one Mr. Vikram Dixit alias Mr. Vinny Sondhi was the key person who is a cheat and has defrauded many organisations by proving his identity through different identity cards acquired by him fraudulently. Third important aspect is that the approved advocates and valuers submitted a report which was relied upon by the Bank officials. These actually appear to be a common thread in all the three cases. 12. Now turning to the recommendations of the Chief Vigilance Officer dated 20.8.2009, it would be relevant to reproduce para 6.2, which reads as under: 6.2 The DA has recommended imposition of the major penalty of Compulsory Retirement on all the three Officers. On perusal of the records, we find that S/Shri V .K. Srivastava and R.K. Mishra are P.F. optees and Shri N.C. Bhardwaj is a pension optee. Earlier, we had proposed Removal from Service in respect of all the three Officer, looking to the fact that in case compulsory retirement is imposed on Shri Bhardwaj, he would be entitled for compulsory retirement person. Looking to the seriousness of the acts of misconduct committed by Shri Bhardwaj, we feel that Removal from Service should be the appropriate penalty in his case. It is so because apart from his involvement as recommending authority in 2 cases at Harsh Nagar Branch, he had sanctioned 3 more loans from Lal Bangla Branch to accommodate the same party i.e., Shri Vikram Dixit. 13. A reading of the aforesaid shows that while earlier the proposal was for removal from service for all the three officers, in respect of other two officers it was converted into compulsory retirement while not doing so in the case of the appellant. The rationale is stated to be the seriousness of the acts of misconduct of the appellant and the fact that he was the recommending authority in two cases and the sanctioning authority in three other cases. However, the real reason comes out from the earlier part of the paragraph, which is that while the other two officers were provident fund optees, the appellant was a pension optee. It is, however, not explained in any of the pleadings before us as to what is the financial ramification in respect of the two options and as to whether the appellant would get a greater financial benefit by reason of being a pension optee. 14. It is difficult for us to accept that there is any difference in the conduct of the three officers as would justify this differentiation in punishment. The most important fact in this behalf to notice is that as per the counter affidavit submitted by the respondents, in their own wisdom they have agreed to grant compassionate allowance to the appellant, which is 2/3 rd of the full pension as would be payable to him had the punishment of removal from service not been imposed on him. What is also important to note is that it is further submitted in the same paragraph 8.2 that even if the punishment is modified to compulsory retirement the appellant would receive 2/3 rd of the full pension which is equivalent to the 2/3 rd of the full pension as received for compassionate allowance. The appellant has been given the maximum benefit under Regulations 31 & 33 of the Pension Regulations 1995 dealing with compassionate allowance. 8.2. …...It is further submitted that even in case a punishment of Removal from service is imposed upon the Petitioner is modified to that of Compulsory Retirement, he would receive 2/3 rd of the Full Pension, which is equivalent to the 2/3 rd of Full Pension which he is receiving at present as a Compassionate Allowance. 15. We fail to appreciate that once there is no financial difference and the role is practically identical, why the respondents hesitated themselves to convert the punishment inflicted on the appellant from one of removal from service which shall not be disqualification for future employment to compulsory retirement. The only aspect is the nature of punishment which appears to tar the appellant more than the other two officers without any financial implication for the respondent-Bank.
### Response:
1
### Explanation:
6. It is trite to say that the domain of the courts on the issue of quantum of punishment is very limited. It is the disciplinary authority or the appellate authority, which decides the nature of punishment keeping in mind the seriousness of the misconduct committed. This would not imply that if the punishment is so disproportionate that it shocks the conscience of the court the courts are denuded of the authority to interfere with the same. Normally even in such cases it may be appropriate to remit the matter back for consideration by the disciplinary/appellate authority. However, one other cause for interference can be where the plea raised is of parity in punishment but then the pre-requisite would be that the parity has to be in the nature of charges made and held against the delinquent employee and the conduct of the employee post the incident. It is the latter aspect which is sought to be advanced by learned counsel for the appellant by relying upon the judgment in Rajendra Yadav v. State of Madhya Pradesh & Ors. (2013) 3 SCC 73. On this very aspect learned counsel for the respondents drew out attention to a subsequent judgment in Lucknow Kshetriya Gramin Bank (Now Allahabad, Uttar Pradesh Gramin Bank) & Anr. v. Rajendra Singh (2013) 12 SCC 372 which had taken note of the earlier judgment referred to aforesaid8. The principle, thus, culled out is that remitting a matter on the issue of quantum of punishment would be as set out in para 19.5 aforesaid, i.e., where a co-delinquent is awarded lesser punishment by the disciplinary authority even when the charges of misconduct were identical or the co-delinquent was foisted with more serious charges. This is based on the principle of equality but then there has to be an absolute parity10. If we look to the case of the other two officers, the likely loss to the Bank was assessed in the range of about Rs.77.70 lakh in the case of Mr. R.K. Mishra and Rs.39.74 lakh in the case of Mr. V .K. Srivastava. The amount is, at least, not very different from one as in the case of Mr. R.K. Mishra. However, what is more important is the role performed. Mr. R.K. Mishra and Mr. V .K. Srivastava were both the sanctioning authorities in respect of the loans in questions and there were four loans each involved in the case of both the officers. In the case of the appellant, he was the sanctioning authority in three loans while he was the recommending authority in two loans11. In order to appreciate this aspect, we would first refer to the findings on the charges against the appellant. It is noteworthy that no mala fide was proved. It was found that one Mr. Vikram Dixit alias Mr. Vinny Sondhi was the key person who is a cheat and has defrauded many organisations by proving his identity through different identity cards acquired by him fraudulently. Third important aspect is that the approved advocates and valuers submitted a report which was relied upon by the Bank officials. These actually appear to be a common thread in all the three cases13. A reading of the aforesaid shows that while earlier the proposal was for removal from service for all the three officers, in respect of other two officers it was converted into compulsory retirement while not doing so in the case of the appellant. The rationale is stated to be the seriousness of the acts of misconduct of the appellant and the fact that he was the recommending authority in two cases and the sanctioning authority in three other cases. However, the real reason comes out from the earlier part of the paragraph, which is that while the other two officers were provident fund optees, the appellant was a pension optee. It is, however, not explained in any of the pleadings before us as to what is the financial ramification in respect of the two options and as to whether the appellant would get a greater financial benefit by reason of being a pension optee14. It is difficult for us to accept that there is any difference in the conduct of the three officers as would justify this differentiation in punishment. The most important fact in this behalf to notice is that as per the counter affidavit submitted by the respondents, in their own wisdom they have agreed to grant compassionate allowance to the appellant, which is 2/3 rd of the full pension as would be payable to him had the punishment of removal from service not been imposed on him. What is also important to note is that it is further submitted in the same paragraph 8.2 that even if the punishment is modified to compulsory retirement the appellant would receive 2/3 rd of the full pension which is equivalent to the 2/3 rd of the full pension as received for compassionate allowance. The appellant has been given the maximum benefit under Regulations 31 & 33 of the Pension Regulations 1995 dealing with compassionate allowance8.2. …...It is further submitted that even in case a punishment of Removal from service is imposed upon the Petitioner is modified to that of Compulsory Retirement, he would receive 2/3 rd of the Full Pension, which is equivalent to the 2/3 rd of Full Pension which he is receiving at present as a Compassionate Allowance15. We fail to appreciate that once there is no financial difference and the role is practically identical, why the respondents hesitated themselves to convert the punishment inflicted on the appellant from one of removal from service which shall not be disqualification for future employment to compulsory retirement. The only aspect is the nature of punishment which appears to tar the appellant more than the other two officers without any financial implication for the respondent-Bank.
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Jarnail Singh Vs. State Of Punjab | does not appear to be trustworthy and reliable for the simple reason that even though the headlight of the car was on, it would be lighting only the front portion and not the side of the car and may not even have lighted sufficiently to enable PW 7 to see as to what had happened inside the car. Although it was a winter night it is not stated nor understood as to why the windows of the car were kept open. It is also not stated by PW-7 that he had made any effort to help or render assistance to stop the verbal dual between the accused and the deceased or took any effective steps to stop the stabbing on both the persons. PW-7 had further stated that his brother was a driver of the van and that the incident had happened because he was unwilling to take the vehicle by the village path. However, in his deposition he has stated that his brother was seated at the back seat alongwith the deceased. It is not understood as to why the driver of the vehicle driving the car would seat in the back seat of the car instead of driving the car from the front seat. Presence of PW-7 at the spot at that point of time was also providential and he has been examined only as a chance witness. The other alleged eye witness namely Chanan Singh, Member Panchayat of village Kasiana was not examined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eye witness turned hostile. 18. Therefore, out of the three eye witnesses one has become hostile whereas the other was not examined at all by the prosecution and we have only one eye witness PW-7, who happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could be convicted. 19. It is no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examine that evidence critically. 20. However, when we scrutinize the evidence of PW-7, in the present case, we do not find him to be trustworthy and reliable witness for he is changing his version frequently. He had given one version in the F.I.R which is reiterated during the course of investigation before the police whereas he had given a totally different version at the time of his statement before the court. He had stated in the F.I.R that following the altercation between the deceased and the accused the deceased first gave a knife blow. When inquest proceedings took place on the next day at 7.00 a.m. he stuck to the same version and during investigation also he confirmed the aforesaid allegation made by him whereas in the trial he stated that the accused first gave two knife blows to the deceased and then he tried to commit suicide by giving a knife blow to himself. He had also stated that on receiving those two blows the deceased came through the window and fell down on the ground. The said version also cannot be believed for the deceased after receiving the injuries could not have gone out of the window unless the door was open. The car was allegedly parked with the headlights on and if that was so, the key of the car was available in the starting/ignition switch and, therefore, there was no reason why the said car could not have been driven with the dead body of the deceased and the injured to the hospital as also to the police station by the said PW-7 and the other witnesses allegedly with him at that point of time for it has come in evidence that the other witness knew driving as he was driving the tractor. 21. The prosecution also examined Balbir Singh, PW-8, who stated that he is the owner and driver of a taxi and on 15.11.1993 Jarnail Singh hired the taxi of Ramtar in his presence and after that Ramtar never returned. The deposition of the said witness is also found to be not worthy of reliance for he did not produce any registration certificate. On his statement that he was owning a taxi, he later said that he had sold the taxi. He also stated in his evidence that he is unable to recollect as to where from he had purchased the taxi or to whom he had sold his taxi. He also stated in his deposition that he was holding a forged driving license. These circumstances make him totally unreliable. 22. The entire story sought to be put forth by the prosecution and by PW-7 particularly appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we set aside the order of conviction and sentence passed against the appellant and give him benefit of doubt. He stands acquitted of the charges. He shall be set free immediately, unless required in any other matter.23. | 1[ds]. Mukundakam Sharma, J.e present appeal is filed by the appellant being aggrieved by the judgment and order of the learned Single Judge of the Punjab & Haryana High Court affirming the judgment and order of the learned Additional Sessions Judge, Patiala finding the appellant- accused guilty of the offence alleged against him. The learned Additional Sessions Judge, found the appellant-accused guilty and convicted him under Section 304 Part II of the Indian Penal Code, 1860 (for short `IPC) and sentenced him to undergo rigorous imprisonment for eight years. However, in the appeal filed by the appellant as against the order of conviction and sentence the learned Single Judge while maintaining the finding of guilt of the appellant converted the conviction of the appellant from Section 304 Part II IPC to offence under Section 304 Part I IPC and sentenced him to undergo rigorous imprisonment for five years.3. In order to appreciate the contention raised by the appellant-accused that the courts below have failed to properly analyse and scrutinise the evidence of the solitary witness and that the presence of the said solitary witness at the place of occurrence was not natural and also that his testimony was not free from embellishment, we are required to mention brief facts as alleged by the prosecution.4. Ramtar (hereinafter referred to as `deceased) was the younger brother of the Harjinder Kumar, the complainant, both sons of Jiwa Nath. The deceased was employed as a driver of a Maruti Van bearing Registration No. PB-01-0353 belonging to Gurdev Singh, resident of village, Harjinder Kumar was proceeding from village Phagan Majra to meet Mohinder Singh son of Kartar Singh and at about 6.30 p.m., he reached the bus stop of village Phagan Majra, where he met Manjit Singh, Sarpanch and Chanan Singh, Member Panchayat of village Kasiana. They all then started to village Phagan Majra. When they reached the point from where a kacha path takes off to village Kasiana, they found the abovementioned Maruti Van with its headlight on, lying parked with its windows open at a distance of about 1 = Killa from the metalled road. On suspicion, they went towards the van and on reaching there, they found deceased seated on the right rear seat and accused Jarnail Singh seated on the left rear seat of thes putting pressure on deceased to take the van by kacha path way to village Kasiana but the decease was disinclined. An exchange of hot words ensued. Accused dealt two stab blows with knife, one on the chest and other on right flank of deceased. The deceased became unconscious and rolled down on the ground through the right window of the van. On sensing that deceased has succumbed to the injuries, accused plunged the knife into his chest, in order to commit suicide. The knife fell down from his grip in theg arranged a tractor the deceased and accused were brought to Rajindra Hospital, Patiala. On reaching the hospital, Harjinder Kumar and others were told by doctor that deceased had already expired. Harjinder Kumar and Manjit Singh left for the Police Station, Sadar Patiala. When they reached near the general bus stand, Patiala they came across ASI Karnail Singh alongwith other police officials at about 10.30 p.m. Harjinder Kumar made statement Ex. PD before the ASI who made his endorsement Ex.PD/1 and sent the same to the Police Station where on its basis formal FIR Ex. PD/2 was recorded. ASI Karnail Singh alongwith Harjinder Kumar, Manjit Singh and other police officials went to Rajindra Hospital, Patiala. At that time the dead house was lying locked. Early in the morning at about 6.30 a.m. Raj Kumar the attendant came to the dead house and opened the same. The dead body of deceased was identified by Harjinder Kumar and Manjit Singh. The ASI prepared the Inquest Report Ex. PA/1 and handed over the dead body alongwith request Ex. PA/2 to Constable Gurdeep Singh for postmortem examination. ASI in the company of Harjinder Singh, Manjit Singh and other police officials went to the scene of crime, and prepared site plan Ex. PW 11/A showing the place of occurrence. He seized the knife Ex. P1, which was allegedly stained with blood. The same was converted into a parcel after preparing its rough sketch Ex. PW 11/B. The knife was taken into possession vide memo Ex. PW 10/A. Some portion of the rear seat of the van which was blood stained alongwith its foam was also removed and turned into a parcel with seal `GS and taken into possession vide memo Ex PW.10/E. The van alongwith its Registration Certificate Ex. PW 10/D was also seized vide memo Ex. PW 10/C. Thereafter ASI came to Rajindra Hospital, Patiala and took into possession the parcel containing clothes of the deceased. He deputed some constables including Amar Singh to guard the accused in the hospital. He went back to the police station on 16.11.1993 and deposited the case property with seals intact with MHC Bhupinder Singh. He arrested the accused on 9.12.1993. After completion of investigation, the charge-sheet was filed in the court of learned Chief Judicial Magistrate, Patiala, who vide his order dated 15.03.1994 committed the case to the court of learned Sessions Judge, Patiala for trial.e accused was charged u/s 302 IPC as well as u/s 309 IPC. However, the charge u/s 309 IPC was deleted subsequently. In order to substantiate its case, the prosecution examined 12 witnesses in all. Harjinder Singh who was the eye witness and complainant was examined as PW7. Manjit Singh, Sarpanch, the alleged eye witness was also examined as PW6 but he did not support the prosecution version, not even the presence of PW7 at the time of occurrence. Consequently he was declared hostile. Chanan Singh another alleged eye witness was given up on the ground that he has been won over by the accused.In the FIR it was stated by PW-7, the alleged eye witness, that the deceased brother first gave a knife blow in the chest of the accused and thereafter the accused gave two stab blows with his knife on the person of deceased. The same set of allegation was made by said PW-7 even before the police during the course of investigation. However, during the trial he stated that there was an exchange of hot words between the accused and the deceased consequent to which the accused gave two stab blows with the knife to the deceased, one of which fell on the chest whereas the other on the right flank of the deceased. It was also stated in the evidence by the said PW-7 that on seeing that the deceased had died the accused attempted to commit suicide by plunging the knife on the left side of his chest.n the other hand, the accused put forth that he was learning driving from the deceased, who was his friend. He stated that on the day of the occurrence three unidentified person hired the van of the deceased and on reaching the spot, deceased refused to take his van on kacha path and those person picked up a row with him and they assaulted both the deceased and the accused with the Gatra Kirpan due to which both of them suffered injuries. He further stated that he became unconscious on receipt of injury in his stomach and subsequently he was involved in this case.The learned Additional Sessions Judge, on appreciation of the evidence on record held that though the injury on the accused could have been self inflicted as stated by the doctor, but even considering that the same was inflicted in self-defence, the right of self-defence to the extent of causing the death of the deceased was not available to the accused. On noticing and appreciating the fact that there was allegation of an exchange of hot words and that the incident occurred at the spur of the moment without any premeditation, the learned Additional Sessions Judge found the accused guilty and convicted him under Section 304 Part II IPC and sentenced him to undergo rigorous imprisonment for eight years.n an appeal being filed by the appellant as against the aforesaid order of conviction and sentence the learned Single Judge heard the parties on merits. While maintaining the finding of guilt against the appellant the learned Single Judge, however, convicted the appellant under Section 304 Part I IPC by altering the same from one under Section 304 Part II IPC. However, taking into consideration the fact that the accused has become permanently physically handicapped and his disability is 80% the learned Single Judge reduced the sentence to five years instead of eight years.e accused filed the present appeal as against the aforesaid orders. We have heard the learned counsel appearing for the appellant-accused as also learned counsel appearing for the State and also scrutinised the evidence on record.The learned counsel appearing for the appellant submitted before us that the presence of PW-7, the only eye witness supporting the alleged story of the prosecution, at the spot is too providential to be true. It was also submitted that although it is alleged that the First Information Report was recorded at 10.30 or 11.00 p.m., but in the inquest report which was drawn at 7.00 a.m. on the next day, in the place of the F.I.R number no particulars were given and only a dash was shown and the F.I.R number was inserted at the later point of time. Relying on the said fact it was submitted that the first information report was submitted late and belatedly on the next date i.e. on 16.11.1993 at about 9.00 a.m. He further submitted that the statement of PW-7 is full of embellishment and contradictions from his previous statement. He drew our attention to the allegation made in the first information report and to the statement of said PW-7. He submitted that said PW-7 is neither trustworthy nor reliable, and therefore, the appellant should have been acquitted instead of being convicted in the aforesaid manner.The learned counsel appearing for the respondent, on the other hand, submitted that both the courts below namely the High Court and the learned Additional Sessions Judge found the appellant guilty of the offence and the said findings and conclusion reached should not be interfered with.The learned Additional Sessions Judge found the appellant guilty of the offence and convicted the appellant-accused under Section 304 Part II IPC. The prosecution did not file any appeal as against the aforesaid order of conviction and sentence whereas the appellant-accused filed an appeal against his order of conviction.14. It is established fact that the offence of Section 304 Part I IPC is of a higher degree than that of the offence under Section 304 Part II IPC, as also held in Ruli Ram v. State of Haryana [(2002) 7 SCC 691, Para 8]. The learned Single Judge, therefore, was not justified in converting the order of conviction and altering the same from Section 304 Part II IPC to Section 304 Part I IPC, particularly when the prosecution did not file any appeal. By virtue of the order passed by the learned Single Judge the appellant stood convicted of a higher degree of offence than that of Section 304 Part II IPC, although the learned Single Judge altered the sentence from eight years to five years. In the case of Abdul Aziz v. State of Rajasthan [(2007) 10 SCC 283] it was held by this Court that if a person is charged under a grave Section, but however, if acquitted under the said grave section by the Trial Court, then it would amount to travesty of Justice if in his own appeal he is convicted under that grave section, without there being any appeal from the State and without there being prior notice of enhancement issued by the appellate Court.Be that as it may, it is necessary now to consider whether the prosecution case as alleged could be said to be trustworthy and reliable, for which we are required to refer and analyse the evidence as adduced by the parties.According to the prosecution the incident took place on 15.11.1993 at about 6.30 p.m. which was an incident happening on an evening of the winter season. The deceased who was the brother of PW-7 was allegedly driving the van which was parked at the place of incident with windows open and headlights on, which meant that it was dark at that point of time. Although it was a winter night still the windows of the car were kept open, for which according to the prosecution, PW-7 could see the entire incident. In the first information report PW-7 stated that initially a knife blow was given by the deceased to the accused and thereafter the accused gave two knife blows to the deceased, which resulted in his death and consequently his body came out of the window. The aforesaid version as stated in the first information report, was however, later on changed and altered when PW-7 deposed in the court that the accused after giving two knife blows to the deceased attempted to commit suicide by plunging the knife in his chest. In support of the said contention reliance was placed on the evidence of the doctor who has stated during his examination that the aforesaid injury on the accused could have been self inflicted also. PW-7 is said to be the eye witness who has allegedly seen the entire occurrence including the exchange of hot words between the appellant and the deceased in a winter night and that also when it was totallyto him, he could see the entire incident in the light of the headlight of the car.17. The aforesaid statement of PW-7 does not appear to be trustworthy and reliable for the simple reason that even though the headlight of the car was on, it would be lighting only the front portion and not the side of the car and may not even have lighted sufficiently to enable PW 7 to see as to what had happened inside the car. Although it was a winter night it is not stated nor understood as to why the windows of the car were kept open. It is also not stated by PW-7 that he had made any effort to help or render assistance to stop the verbal dual between the accused and the deceased or took any effective steps to stop the stabbing on both the persons. PW-7 had further stated that his brother was a driver of the van and that the incident had happened because he was unwilling to take the vehicle by the village path. However, in his deposition he has stated that his brother was seated at the back seat alongwith the deceased. It is not understood as to why the driver of the vehicle driving the car would seat in the back seat of the car instead of driving the car from the front seat. Presence of PW-7 at the spot at that point of time was also providential and he has been examined only as a chance witness. The other alleged eye witness namely Chanan Singh, Member Panchayat of village Kasiana was not examined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eye witness turnedout of the three eye witnesses one has become hostile whereas the other was not examined at all by the prosecution and we have only one eye witness PW-7, who happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could beis no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examine that evidence critically.However, when we scrutinize the evidence of PW-7, in the present case, we do not find him to be trustworthy and reliable witness for he is changing his version frequently. He had given one version in the F.I.R which is reiterated during the course of investigation before the police whereas he had given a totally different version at the time of his statement before the court. He had stated in the F.I.R that following the altercation between the deceased and the accused the deceased first gave a knife blow. When inquest proceedings took place on the next day at 7.00 a.m. he stuck to the same version and during investigation also he confirmed the aforesaid allegation made by him whereas in the trial he stated that the accused first gave two knife blows to the deceased and then he tried to commit suicide by giving a knife blow to himself. He had also stated that on receiving those two blows the deceased came through the window and fell down on the ground. The said version also cannot be believed for the deceased after receiving the injuries could not have gone out of the window unless the door was open. The car was allegedly parked with the headlights on and if that was so, the key of the car was available in the starting/ignition switch and, therefore, there was no reason why the said car could not have been driven with the dead body of the deceased and the injured to the hospital as also to the police station by the said PW-7 and the other witnesses allegedly with him at that point of time for it has come in evidence that the other witness knew driving as he was driving the tractor.The prosecution also examined Balbir Singh, PW-8, who stated that he is the owner and driver of a taxi and on 15.11.1993 Jarnail Singh hired the taxi of Ramtar in his presence and after that Ramtar never returned. The deposition of the said witness is also found to be not worthy of reliance for he did not produce any registration certificate. On his statement that he was owning a taxi, he later said that he had sold the taxi. He also stated in his evidence that he is unable to recollect as to where from he had purchased the taxi or to whom he had sold his taxi. He also stated in his deposition that he was holding a forged driving license. These circumstances make him totally unreliable.The entire story sought to be put forth by the prosecution and by PW-7 particularly appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we set aside the order of conviction and sentence passed against the appellant and give him benefit of doubt. He stands acquitted of the charges. He shall be set free immediately, unless required in any other matter. | 1 | 3,589 | 3,499 | ### Instruction:
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does not appear to be trustworthy and reliable for the simple reason that even though the headlight of the car was on, it would be lighting only the front portion and not the side of the car and may not even have lighted sufficiently to enable PW 7 to see as to what had happened inside the car. Although it was a winter night it is not stated nor understood as to why the windows of the car were kept open. It is also not stated by PW-7 that he had made any effort to help or render assistance to stop the verbal dual between the accused and the deceased or took any effective steps to stop the stabbing on both the persons. PW-7 had further stated that his brother was a driver of the van and that the incident had happened because he was unwilling to take the vehicle by the village path. However, in his deposition he has stated that his brother was seated at the back seat alongwith the deceased. It is not understood as to why the driver of the vehicle driving the car would seat in the back seat of the car instead of driving the car from the front seat. Presence of PW-7 at the spot at that point of time was also providential and he has been examined only as a chance witness. The other alleged eye witness namely Chanan Singh, Member Panchayat of village Kasiana was not examined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eye witness turned hostile. 18. Therefore, out of the three eye witnesses one has become hostile whereas the other was not examined at all by the prosecution and we have only one eye witness PW-7, who happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could be convicted. 19. It is no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examine that evidence critically. 20. However, when we scrutinize the evidence of PW-7, in the present case, we do not find him to be trustworthy and reliable witness for he is changing his version frequently. He had given one version in the F.I.R which is reiterated during the course of investigation before the police whereas he had given a totally different version at the time of his statement before the court. He had stated in the F.I.R that following the altercation between the deceased and the accused the deceased first gave a knife blow. When inquest proceedings took place on the next day at 7.00 a.m. he stuck to the same version and during investigation also he confirmed the aforesaid allegation made by him whereas in the trial he stated that the accused first gave two knife blows to the deceased and then he tried to commit suicide by giving a knife blow to himself. He had also stated that on receiving those two blows the deceased came through the window and fell down on the ground. The said version also cannot be believed for the deceased after receiving the injuries could not have gone out of the window unless the door was open. The car was allegedly parked with the headlights on and if that was so, the key of the car was available in the starting/ignition switch and, therefore, there was no reason why the said car could not have been driven with the dead body of the deceased and the injured to the hospital as also to the police station by the said PW-7 and the other witnesses allegedly with him at that point of time for it has come in evidence that the other witness knew driving as he was driving the tractor. 21. The prosecution also examined Balbir Singh, PW-8, who stated that he is the owner and driver of a taxi and on 15.11.1993 Jarnail Singh hired the taxi of Ramtar in his presence and after that Ramtar never returned. The deposition of the said witness is also found to be not worthy of reliance for he did not produce any registration certificate. On his statement that he was owning a taxi, he later said that he had sold the taxi. He also stated in his evidence that he is unable to recollect as to where from he had purchased the taxi or to whom he had sold his taxi. He also stated in his deposition that he was holding a forged driving license. These circumstances make him totally unreliable. 22. The entire story sought to be put forth by the prosecution and by PW-7 particularly appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we set aside the order of conviction and sentence passed against the appellant and give him benefit of doubt. He stands acquitted of the charges. He shall be set free immediately, unless required in any other matter.23.
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the light of the headlight of the car.17. The aforesaid statement of PW-7 does not appear to be trustworthy and reliable for the simple reason that even though the headlight of the car was on, it would be lighting only the front portion and not the side of the car and may not even have lighted sufficiently to enable PW 7 to see as to what had happened inside the car. Although it was a winter night it is not stated nor understood as to why the windows of the car were kept open. It is also not stated by PW-7 that he had made any effort to help or render assistance to stop the verbal dual between the accused and the deceased or took any effective steps to stop the stabbing on both the persons. PW-7 had further stated that his brother was a driver of the van and that the incident had happened because he was unwilling to take the vehicle by the village path. However, in his deposition he has stated that his brother was seated at the back seat alongwith the deceased. It is not understood as to why the driver of the vehicle driving the car would seat in the back seat of the car instead of driving the car from the front seat. Presence of PW-7 at the spot at that point of time was also providential and he has been examined only as a chance witness. The other alleged eye witness namely Chanan Singh, Member Panchayat of village Kasiana was not examined at all on the ground that he was won over by the accused. Manjit Singh, Sarpanch who is stated to be the last and third eye witness turnedout of the three eye witnesses one has become hostile whereas the other was not examined at all by the prosecution and we have only one eye witness PW-7, who happens to be the brother of the deceased. If his evidence is discarded there is no other evidence on the basis of which the accused could beis no doubt true that conviction could be based on the sole testimony of a solitary eye witness but in order to be the basis of conviction his presence at the place of occurrence has to be natural and his testimony should be strong and reliable and free from any blemish. In Chuhar Singh v. State of Haryana, [(1976) 1 SCC 879] this Court held that what is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of evidence on which it relies. The evidence of a single witness may sustain a sentence of death whereas a host of vulnerable witnesses may fail to support a simple charge of hurt. Since the case must stand or fall by the evidence of single witness, it is necessary to examine that evidence critically.However, when we scrutinize the evidence of PW-7, in the present case, we do not find him to be trustworthy and reliable witness for he is changing his version frequently. He had given one version in the F.I.R which is reiterated during the course of investigation before the police whereas he had given a totally different version at the time of his statement before the court. He had stated in the F.I.R that following the altercation between the deceased and the accused the deceased first gave a knife blow. When inquest proceedings took place on the next day at 7.00 a.m. he stuck to the same version and during investigation also he confirmed the aforesaid allegation made by him whereas in the trial he stated that the accused first gave two knife blows to the deceased and then he tried to commit suicide by giving a knife blow to himself. He had also stated that on receiving those two blows the deceased came through the window and fell down on the ground. The said version also cannot be believed for the deceased after receiving the injuries could not have gone out of the window unless the door was open. The car was allegedly parked with the headlights on and if that was so, the key of the car was available in the starting/ignition switch and, therefore, there was no reason why the said car could not have been driven with the dead body of the deceased and the injured to the hospital as also to the police station by the said PW-7 and the other witnesses allegedly with him at that point of time for it has come in evidence that the other witness knew driving as he was driving the tractor.The prosecution also examined Balbir Singh, PW-8, who stated that he is the owner and driver of a taxi and on 15.11.1993 Jarnail Singh hired the taxi of Ramtar in his presence and after that Ramtar never returned. The deposition of the said witness is also found to be not worthy of reliance for he did not produce any registration certificate. On his statement that he was owning a taxi, he later said that he had sold the taxi. He also stated in his evidence that he is unable to recollect as to where from he had purchased the taxi or to whom he had sold his taxi. He also stated in his deposition that he was holding a forged driving license. These circumstances make him totally unreliable.The entire story sought to be put forth by the prosecution and by PW-7 particularly appears to be doubtful and full of contradictions. It will be unsafe to convict a person on the basis of such unreliable and untrustworthy evidence particularly when such statements are full of embellishment and contradictions, without corroboration in material particulars by reliable testimony, direct or circumstantial. Consequently, we set aside the order of conviction and sentence passed against the appellant and give him benefit of doubt. He stands acquitted of the charges. He shall be set free immediately, unless required in any other matter.
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Indian Drugs & Pharmaceuticals Ltd Vs. Workman,Indian Drugs &Pharmaceutical Ltd | October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C Rawani vs. Union of India 1992 (1) SCC 331 , is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v Gian Prakash Singh, 1993(5) JT (SC) 681 this Court by a Bench of three Judges considered the effect of the order in A.K. Jains case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v Honble Chief Justice of Karnataka, AIR 1991 SC 295 : (1991 Lab 1 C 235), this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under the Article 142, directed that their appointments as regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v Piara Singh, (1992 AIR SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules". 44. In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them. 45. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI, Bangalore vs S. Mani & others, AIR 2005 SC 2179 (para 54). 46. In the aforesaid decision the Supreme Court referred to its own earlier decision in A Umarani vs. Registrar, Cooperative Societies & others, AIR 2004 SC 4504 wherein it was observed: "Regularization, in our considered opinion, is not and cannot be a mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (See State of H.P. vs. Suresh Kumar Verma and another 1996(7) SCC 562"). This Court in R.N. Nanjundappa vs. T. Thimmiah, 1972 (1) SCC 409 held: " If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or it may have the effect of setting at naught the rules." 47. The decision in the case of R.N. Nanjundappa (supra) has been followed by the Supreme Court in several decisions viz. Ramendra Singh vs. Jagdish Prasad, 1984 Supp SCC 142 ; K. Narayanan vs. State of Karnataka, 1994 Supp(1) SCC 44, and V. Sreenivasa Reddy vs. Government of A.P., 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik vs. Sanjay Raj Subba, 2004 (2) SCC 377 and A. Umarani vs. Registrar, Cooperative Societies and others, 2004 (7) SCC 112". 48. We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka vs. Umadevi (supra), and other decisions of this Court. | 1[ds]9. It has come in the evidence that the number of sanctioned posts in the company were only 1049, but there were already 1299 employees working in the company at the relevant time. We fail to understand how could 1299 employees be appointed when there were only 1049 sanctioned posts? Moreover, the ten concerned employees were over and above the 1299 already working in the company at the relevant time.10. It has come on record that the financial position of the appellant-company was going from bad to worse and all the measures taken by them during the critical years from 1988 onwards including a ban on recruitment and other austerity measures did not bear any fruitful result. The company incurred heavy losses and as against the meagre capital of Rs.21 crores for the Rishikesh Unit, the petitioner had incurred an accumulated loss to the tune of Rs.233 crores upto the year 1992-93. The annual accounts for the said year were produced as Exhibit E-11 before the courts below. Subsequently the appellant was declared a sick company by the BIFR. A revival proposal was prepared before the BIFR where the union agreed not to raise any demand which entailed any liability. Hence, in our opinion there could be no justification for grant of parity in wages. The BIFR appointed the IDBI as the operating agency in the year 1986 when the accumulated losses of the company reached an astonishing figure of Rs.624 crores in the year 1995. In our opinion the High Court failed to appreciate that when the appellant is still before the BIFR, and where the Government is making an effort to again present a revival proposal, there was no justification to saddle the appellant with liabilities on the basis of compassion when no legal right exists in favour of the concerned respondents. When there was no vacancy and the company was in poor financial condition, the impugned order was wholly uncalled for.11. In the present case it is relevant to state that the Government in effort to revive the company drastically reduced the manpower of the appellant-company from 1991 onwards and the petitioner which at one point of time had a total of about 13000 employees in all its units in India, have at present, in total, only about 9 employees at the Hyderabad plant i.e. supervisors and managers, 29 at Gurgaon in which there are only 4 in the workers category, 15 employees at the Bihar plant i.e. only supervisors and managers, 30 employees at the Tamil Nadu plant i.e. supervisors and managers and about 200 odd employees at the Rishikesh plant including only about 39 regular workers. It is relevant to state the Government is still pursuing the plans of reduction in manpower under a VRS Scheme. Thus, in the scenario as stated above, the impugned directions of the courts below were, in our opinion, wholly uncalled for and in violation of settled legal principles.The distinction between a temporary employee and a permanent employee is well settled. Whereas a permanent employee has a right to the post, a temporary employee has no right to the post. It is only a permanent employee who has a right to continue in service till the age of superannuation (unless he is dismissed or removed after an inquiry, or his service is terminated due to some other valid reason earlier). As regards a temporary employee, there is no age of superannuation because he has no right to the post at all. Hence, it follows that no direction can be passed in the case of any temporary employee that he should be continued till the age of superannuation.We are afraid that the Labour Court and High Court have passed their orders on the basis of emotions and sympathies, but cases in Court have to be decided on legal principles and not on the basis of emotions and sympathies.No doubt, there can be occasions when the State or its instrumentalities employ persons on temporary or daily wage basis in a contingency as additional hands without following the required procedure, but this does not confer any right on such persons to continue in service or get regular pay. Unless the appointments are made by following the rules, such appointees do not have any right to claim permanent absorption in the establishment.33. A perusal of the record of the present case shows that the respondents were appointed on purely casual and daily rate basis without following the relevant service rules. Thus they had no right to the post at all, vide State of U.P. vs. Kaushal Kishore 1991 (1) SCC 691. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case.No doubt, in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Supreme Court directs regularization of service of an employee who had put in 3 years service, this does not mean that all employees who had put in 3 years service must be regularized. Hence, such a direction is not a precedent.We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka vs. Umadevi (supra), and other decisions of this Court.Before parting with this case, we would like to state that although this Court would be very happy if everybody in the country is given a suitable job, the fact remains that in the present state of our countrys economy the number of jobs are limited. Hence, everybody cannot be given a job, despite our earnest desire.51. It may be mentioned that jobs cannot be created by judicial orders, nor even by legislative or executive decisions. Jobs are created when the economy is rapidly expanding, which means when there is rapid industrialization. At present, the state of affairs in our country is that although the economy has progressed a little in some directions, but the truth is that this has only benefited a handful of persons while the plight of the masses has worsened. Unemployment in our country is increasing, and has become massive and chronic. To give an example, for each post of a Peon which is advertised in some establishments there are over a thousand applicants, many of whom have MA, M.SC., M.Com or MBA degrees. Recently, about 140 posts of Primary School Teachers were advertised in a District in Western Madhya Pradesh, and there were about 13000 applicants i.e. almost 100 applicants for each post. Large scale suicides by farmers in several parts of the country also shows the level of unemployment. These are the social and economic realities of the country which cannot be ignored.52. One may be very large hearted but then economic realities have also to be seen. Giving appointments means adding extra financial burden to the national exchequer. Money for paying salaries to such appointees does not fall from the sky, and it can only be realized by imposing additional taxes on the public or taking fresh loans, both of which will only lead to additional burden on the people.53. No doubt, Article 41 provides for the right to work, but this has been deliberately kept by the founding fathers of our Constitution in the Directive Principles and hence made unenforceable in view of Article 37, because the founding fathers in their wisdom realized that while it was their wish that everyone should be given employment, but the ground realities of our country cannot be overlooked. In our opinion, Article 21 of the Constitution cannot be stretched so far as to mean that everyone must be given a job. The number of available jobs are limited, and hence Courts must take a realistic view of the matter and must exercise self-restraint. | 1 | 7,702 | 1,925 | ### 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:
October 1, 1984. It is a direction under Article 142 on the particular facts and circumstances therein. Therefore, the High Court is not right in placing reliance on the judgment as a ratio to give the direction to the PSC to consider the cases of the respondents. Article 142 power is confided only to this Court. The ratio in Dr. P.C.C Rawani vs. Union of India 1992 (1) SCC 331 , is also not an authority under Article 141. Therein the orders issued by this Court under Article 32 of the Constitution to regularize the ad hoc appointments had become final. When contempt petition was filed for non implementation, the Union had come forward with an application expressing its difficulty to give effect to the orders of this Court. In that behalf, while appreciating the difficulties expressed by the Union in implementation, this Court gave further direction to implement the order issued under Article 32 of the Constitution. Therefore, it is more in the nature of an execution and not a ratio under Article 141. In Union of India v Gian Prakash Singh, 1993(5) JT (SC) 681 this Court by a Bench of three Judges considered the effect of the order in A.K. Jains case and held that the doctors appointed on ad hoc basis and taken charge after October 1, 1984 have no automatic right for confirmation and they have to take their chance by appearing before the PSC for recruitment. In H.C. Puttaswamy v Honble Chief Justice of Karnataka, AIR 1991 SC 295 : (1991 Lab 1 C 235), this Court while holding that the appointment to the post of clerk etc. in the subordinate courts in Karnataka State without consultation of the PSC are not valid appointments, exercising the power under the Article 142, directed that their appointments as regular, on humanitarian grounds, since they have put in more than 10 years service. It is to be noted that the recruitment was only for clerical grade (Class-III post) and it is not a ratio under Article 141. In State of Haryana v Piara Singh, (1992 AIR SC 2130), this Court noted that the normal rule is recruitment through the prescribed agency but due to administrative exigencies, an ad hoc or temporary appointment may be made. In such a situation, this Court held that efforts should always be made to replace such ad hoc or temporary employees by regularly selected employees, as early as possible. Therefore, this Court did not appear to have intended to lay down as a general rule that in every category of ad hoc appointment, if the ad hoc appointee continued for long period, the rules of recruitment should be relaxed and the appointment by regularization be made. Thus considered, we have no hesitation to hold that the direction of the Division Bench is clearly illegal and the learned single Judge is right in directing the State Government to notify the vacancies to the PSC and the PSC should advertise and make recruitment of the candidates in accordance with the rules". 44. In view of the above observations of this Court it has to be held that the rules of recruitment cannot be relaxed and the court/Tribunal cannot direct regularization of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them. 45. It is well settled that regularization cannot be a mode of appointment vide Manager, RBI, Bangalore vs S. Mani & others, AIR 2005 SC 2179 (para 54). 46. In the aforesaid decision the Supreme Court referred to its own earlier decision in A Umarani vs. Registrar, Cooperative Societies & others, AIR 2004 SC 4504 wherein it was observed: "Regularization, in our considered opinion, is not and cannot be a mode of recruitment by any "State" within the meaning of Article 12 of the Constitution of India or any body or authority governed by a Statutory Act or the Rules framed thereunder. It is also now well-settled that an appointment made in violation of the mandatory provisions of the Statute and in particular ignoring the minimum educational qualification and other essential qualifications would be wholly illegal. Such illegality cannot be cured by taking recourse to regularization. (See State of H.P. vs. Suresh Kumar Verma and another 1996(7) SCC 562"). This Court in R.N. Nanjundappa vs. T. Thimmiah, 1972 (1) SCC 409 held: " If the appointment itself is in infraction of the rules or if it is in violation of the provisions of the Constitution the illegality cannot be regularized. Ratification or regularization is possible of an act which is within the power and province of the authority but there has been some noncompliance with procedure or manner which does not go to the root of the appointment. Regularization cannot be said to be a mode of recruitment. To accede to such a proposition would be to introduce a new head of appointment in defiance of the rules or it may have the effect of setting at naught the rules." 47. The decision in the case of R.N. Nanjundappa (supra) has been followed by the Supreme Court in several decisions viz. Ramendra Singh vs. Jagdish Prasad, 1984 Supp SCC 142 ; K. Narayanan vs. State of Karnataka, 1994 Supp(1) SCC 44, and V. Sreenivasa Reddy vs. Government of A.P., 1995 Supp (1) SCC 572. These decisions have also been noticed by the Supreme Court in Sultan Sadik vs. Sanjay Raj Subba, 2004 (2) SCC 377 and A. Umarani vs. Registrar, Cooperative Societies and others, 2004 (7) SCC 112". 48. We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka vs. Umadevi (supra), and other decisions of this Court.
### Response:
1
### Explanation:
of U.P. vs. Kaushal Kishore 1991 (1) SCC 691. Thus, it is well settled that there is no right vested in any daily wager to seek regularization. Regularization can only be done in accordance with the rules and not de hors the rules. In the case of E. Ramakrishnan & others vs. State of Kerala & others 1996 (10) SCC 565 this Court held that there can be no regularization de hors the rules. The same view was taken in Dr. Kishore vs. State of Maharashtra 1997(3) SCC 209, Union of India & others vs. Bishambar Dutt 1996 (11) SCC 341. The direction issued by the services tribunal for regularizing the services of persons who had not been appointed on regular basis in accordance with the rules was set aside although the petitioner had been working regularly for a long time.The respondents have not been able to point out any statutory rule on the basis of which their claim of continuation in service or payment of regular salary can be granted. It is well settled that unless there exists some rule no direction can be issued by the court for continuation in service or payment of regular salary to a casual, ad hoc, or daily rate employee. Such directions are executive functions, and it is not appropriate for the court to encroach into the functions of another organ of the State. The courts must exercise judicial restraint in this connection. The tendency in some courts/tribunals to legislate or perform executive functions cannot be appreciated. Judicial activism in some extreme and exceptional situation can be justified, but resorting to it readily and frequently, as has lately been happening, is not only unconstitutional, it is also fraught with grave peril for the judiciary.The courts must, therefore, exercise judicial restraint, and not encroach into the executive or legislative domain. Orders for creation of posts, appointment on these posts, regularization, fixing pay scales, continuation in service, promotions, etc. are all executive or legislative functions, and it is highly improper for Judges to step into this sphere, except in a rare and exceptional case.No doubt, in some decisions the Supreme Court has directed regularization of temporary or ad hoc employees but it is well settled that a mere direction of the Supreme Court without laying down any principle of law is not a precedent. It is only where the Supreme Court lays down a principle of law that it will amount to a precedent. Often the Supreme Court issues directions without laying down any principle of law, in which case, it is not a precedent. For instance, the Supreme Court often directs appointment of someone or regularization of a temporary employee or payment of salary, etc. without laying down any principle of law. This is often done on humanitarian considerations, but this will not operate as a precedent binding on the High Court. For instance, if the Supreme Court directs regularization of service of an employee who had put in 3 years service, this does not mean that all employees who had put in 3 years service must be regularized. Hence, such a direction is not a precedent.We are of the opinion that if the court/tribunal directs that a daily rate or ad hoc or casual employee should be continued in service till the date of superannuation, it is impliedly regularizing such an employee, which cannot be done as held by this Court in Secretary, State of Karnataka vs. Umadevi (supra), and other decisions of this Court.Before parting with this case, we would like to state that although this Court would be very happy if everybody in the country is given a suitable job, the fact remains that in the present state of our countrys economy the number of jobs are limited. Hence, everybody cannot be given a job, despite our earnest desire.51. It may be mentioned that jobs cannot be created by judicial orders, nor even by legislative or executive decisions. Jobs are created when the economy is rapidly expanding, which means when there is rapid industrialization. At present, the state of affairs in our country is that although the economy has progressed a little in some directions, but the truth is that this has only benefited a handful of persons while the plight of the masses has worsened. Unemployment in our country is increasing, and has become massive and chronic. To give an example, for each post of a Peon which is advertised in some establishments there are over a thousand applicants, many of whom have MA, M.SC., M.Com or MBA degrees. Recently, about 140 posts of Primary School Teachers were advertised in a District in Western Madhya Pradesh, and there were about 13000 applicants i.e. almost 100 applicants for each post. Large scale suicides by farmers in several parts of the country also shows the level of unemployment. These are the social and economic realities of the country which cannot be ignored.52. One may be very large hearted but then economic realities have also to be seen. Giving appointments means adding extra financial burden to the national exchequer. Money for paying salaries to such appointees does not fall from the sky, and it can only be realized by imposing additional taxes on the public or taking fresh loans, both of which will only lead to additional burden on the people.53. No doubt, Article 41 provides for the right to work, but this has been deliberately kept by the founding fathers of our Constitution in the Directive Principles and hence made unenforceable in view of Article 37, because the founding fathers in their wisdom realized that while it was their wish that everyone should be given employment, but the ground realities of our country cannot be overlooked. In our opinion, Article 21 of the Constitution cannot be stretched so far as to mean that everyone must be given a job. The number of available jobs are limited, and hence Courts must take a realistic view of the matter and must exercise self-restraint.
|
Crompton Greaves Limited Vs. Workmen | bipartite talk with the representatives of the union at its Calcutta office on the morning of January 10, 1968 to find out the possibility of an agreed solution. The talk, as agreed, did take place on the morning of January 10, 1968 but no agreement could be arrived at. Whereas according to the union, the management of the company was not serious to arrive at a negotiated settlement and merely made a show of discussing the matter with its representative, according to the management of the company, the unseemly and recalcitrant attitude adopted by the union during the course of the talk led them to believe that the union was not interested in any fruitful negotiation. The Assistant Labour Commissioner, however, continued to use his good offices to bring about an amicable settlement through another joint conference which was scheduled for January 12, 1968. On the afternoon of January 10, 1968, the company without informing the Labour Commissioner that it was proceeding to implement its proposed scheme of retrenchment, hung up a notice retrenching 93 of its workmen belonging to it Calcutta Office. Treating the step taken by the company as pretty serious demanding urgent attention and immediate action, the workmen resorted to strike with effect from January 11, 1968 after giving notice to the appellant and the Labour Directorate and continued the same upto June 26, 1968. In the meantime the industrial dispute in relation to the justification of the aforesaid retrenchment was referred by the State Government to the Industrial Tribunal on March 1, 1968. Subsequently, the State Government vide its order No. 8890-I.R./I/IOL/79/67 dated December 13, 1968 referred the issue of the workmens entitlement to wages for the strike period from January 11, 1968 to June 26, 1968 to the Industrial Tribunal for adjudication. By its aforesaid order dated December 30, 1976, the industrial Tribunal acceded to the workmens demand for wages for the period commencing from January 11, 1968 to the end of February, 1968 but rejected their demand for the remaining period of the strike observing that "the redress for retrenchment having been sought by the union itself through the Tribunal, there remained no justification for the workmen to continue the strike". The scope of the appeal, therefore, restricted to the determination of the short question of entitlement or otherwise of the striking workmen to wages for the period commencing from January 11, 1968 and ending with February 29, 1968. 3. Before proceeding to formulate the points arising for consideration in this appeal, we think it appropriate to advert to the legal position bearing on the upshot of the appeal. 4. It is well-settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statue. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of facts circumstances of each case. It is also well-settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitles them to wages for the strike period. 5. In the light of the above mentioned principles, the following two points arise for consideration in this case : 1. Whether the aforesaid strike was illegal or unjustified ? 2. Whether the workmen resorted to force or violence during the portion of the strike period commencing from January 11, 1968 and ending with February 29, 1968 ? 6. Re. Point No. 1 : No specific provision of law has been brought to our notice on behalf of the appellant which rendered the strike illegal during the period under consideration. The strike cannot also be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of Assistant Labour Commissioner, the company retrenched as many as 93 of its workmen without even intimating to the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Point No. 1, therefore, is answered in the negative. Re. Point No. 2 7. The only other point that remains to be decided is whether the striking workmen resorted to force and violence between January 11, 1968 and the end of February, 1968 which disentitled them to wages. 8. The Tribunal has held that it has not been proved that the workmen resorted to force and violence during the period in question. We have ourselves gone through the entire evidence in the case but have not been able to discern anything therein which may imply us to take a view different from the one taken by the Tribunal. May be that force and violence was resorted to by the striking workmen but the vital question that confronts us is whether the company has been able to establish it. No clear, cogent and dis-interested evidence has been adduced to substantiate the charge that the striking workmen gheroed the managerial staff or assaulted and intimated the loyal employees or cut off electric lines or prevented any dealer from entering the business premises of the company and transacting business with it. No prosecution also appears to have been launched in regard to any of these alleged incidents excepting the one by C. G. Biswanathan which was also later on withdrawn. The company has failed to produce either Mr. Bose or any other employee mentioned in its various letters to the Police. The material on the record thus falls for short of the standard of proof required in cases of this nature. The Tribunal was, therefore, justified in holding that the Management has failed to prove that the workmen resorted to force and violence during the period with which we are concerned. Accordingly, we cannot interfere with the decision of the Tribunal in this appeal under Art. 136 of the Constitution. | 0[ds]8. The Tribunal has held that it has not been proved that the workmen resorted to force and violence during the period in question. We have ourselves gone through the entire evidence in the case but have not been able to discern anything therein which may imply us to take a view different from the one taken by the Tribunal. May be that force and violence was resorted to by the striking workmen but the vital question that confronts us is whether the company has been able to establish it. No clear, cogent andd evidence has been adduced to substantiate the charge that the striking workmen gheroed the managerial staff or assaulted and intimated the loyal employees or cut off electric lines or prevented any dealer from entering the business premises of the company and transacting business with it. No prosecution also appears to have been launched in regard to any of these alleged incidents excepting the one by C. G. Biswanathan which was also later on withdrawn. The company has failed to produce either Mr. Bose or any other employee mentioned in its various letters to the Police. The material on the record thus falls for short of the standard of proof required in cases of this nature. The Tribunal was, therefore, justified in holding that the Management has failed to prove that the workmen resorted to force and violence during the period with which we are concerned. Accordingly, we cannot interfere with the decision of the Tribunal in this appeal under Art. 136 of the ConstitutionNo specific provision of law has been brought to our notice on behalf of the appellant which rendered the strike illegal during the period under consideration. The strike cannot also be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of Assistant Labour Commissioner, the company retrenched as many as 93 of its workmen without even intimating to the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Point No. 1, therefore, is answered in the negative. | 0 | 1,448 | 379 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
bipartite talk with the representatives of the union at its Calcutta office on the morning of January 10, 1968 to find out the possibility of an agreed solution. The talk, as agreed, did take place on the morning of January 10, 1968 but no agreement could be arrived at. Whereas according to the union, the management of the company was not serious to arrive at a negotiated settlement and merely made a show of discussing the matter with its representative, according to the management of the company, the unseemly and recalcitrant attitude adopted by the union during the course of the talk led them to believe that the union was not interested in any fruitful negotiation. The Assistant Labour Commissioner, however, continued to use his good offices to bring about an amicable settlement through another joint conference which was scheduled for January 12, 1968. On the afternoon of January 10, 1968, the company without informing the Labour Commissioner that it was proceeding to implement its proposed scheme of retrenchment, hung up a notice retrenching 93 of its workmen belonging to it Calcutta Office. Treating the step taken by the company as pretty serious demanding urgent attention and immediate action, the workmen resorted to strike with effect from January 11, 1968 after giving notice to the appellant and the Labour Directorate and continued the same upto June 26, 1968. In the meantime the industrial dispute in relation to the justification of the aforesaid retrenchment was referred by the State Government to the Industrial Tribunal on March 1, 1968. Subsequently, the State Government vide its order No. 8890-I.R./I/IOL/79/67 dated December 13, 1968 referred the issue of the workmens entitlement to wages for the strike period from January 11, 1968 to June 26, 1968 to the Industrial Tribunal for adjudication. By its aforesaid order dated December 30, 1976, the industrial Tribunal acceded to the workmens demand for wages for the period commencing from January 11, 1968 to the end of February, 1968 but rejected their demand for the remaining period of the strike observing that "the redress for retrenchment having been sought by the union itself through the Tribunal, there remained no justification for the workmen to continue the strike". The scope of the appeal, therefore, restricted to the determination of the short question of entitlement or otherwise of the striking workmen to wages for the period commencing from January 11, 1968 and ending with February 29, 1968. 3. Before proceeding to formulate the points arising for consideration in this appeal, we think it appropriate to advert to the legal position bearing on the upshot of the appeal. 4. It is well-settled that in order to entitle the workmen to wages for the period of strike, the strike should be legal as well as justified. A strike is legal if it does not violate any provision of the statue. Again, a strike cannot be said to be unjustified unless the reasons for it are entirely perverse or unreasonable. Whether a particular strike was justified or not is a question of facts circumstances of each case. It is also well-settled that the use of force or violence or acts of sabotage resorted to by the workmen during a strike disentitles them to wages for the strike period. 5. In the light of the above mentioned principles, the following two points arise for consideration in this case : 1. Whether the aforesaid strike was illegal or unjustified ? 2. Whether the workmen resorted to force or violence during the portion of the strike period commencing from January 11, 1968 and ending with February 29, 1968 ? 6. Re. Point No. 1 : No specific provision of law has been brought to our notice on behalf of the appellant which rendered the strike illegal during the period under consideration. The strike cannot also be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of Assistant Labour Commissioner, the company retrenched as many as 93 of its workmen without even intimating to the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Point No. 1, therefore, is answered in the negative. Re. Point No. 2 7. The only other point that remains to be decided is whether the striking workmen resorted to force and violence between January 11, 1968 and the end of February, 1968 which disentitled them to wages. 8. The Tribunal has held that it has not been proved that the workmen resorted to force and violence during the period in question. We have ourselves gone through the entire evidence in the case but have not been able to discern anything therein which may imply us to take a view different from the one taken by the Tribunal. May be that force and violence was resorted to by the striking workmen but the vital question that confronts us is whether the company has been able to establish it. No clear, cogent and dis-interested evidence has been adduced to substantiate the charge that the striking workmen gheroed the managerial staff or assaulted and intimated the loyal employees or cut off electric lines or prevented any dealer from entering the business premises of the company and transacting business with it. No prosecution also appears to have been launched in regard to any of these alleged incidents excepting the one by C. G. Biswanathan which was also later on withdrawn. The company has failed to produce either Mr. Bose or any other employee mentioned in its various letters to the Police. The material on the record thus falls for short of the standard of proof required in cases of this nature. The Tribunal was, therefore, justified in holding that the Management has failed to prove that the workmen resorted to force and violence during the period with which we are concerned. Accordingly, we cannot interfere with the decision of the Tribunal in this appeal under Art. 136 of the Constitution.
### Response:
0
### Explanation:
8. The Tribunal has held that it has not been proved that the workmen resorted to force and violence during the period in question. We have ourselves gone through the entire evidence in the case but have not been able to discern anything therein which may imply us to take a view different from the one taken by the Tribunal. May be that force and violence was resorted to by the striking workmen but the vital question that confronts us is whether the company has been able to establish it. No clear, cogent andd evidence has been adduced to substantiate the charge that the striking workmen gheroed the managerial staff or assaulted and intimated the loyal employees or cut off electric lines or prevented any dealer from entering the business premises of the company and transacting business with it. No prosecution also appears to have been launched in regard to any of these alleged incidents excepting the one by C. G. Biswanathan which was also later on withdrawn. The company has failed to produce either Mr. Bose or any other employee mentioned in its various letters to the Police. The material on the record thus falls for short of the standard of proof required in cases of this nature. The Tribunal was, therefore, justified in holding that the Management has failed to prove that the workmen resorted to force and violence during the period with which we are concerned. Accordingly, we cannot interfere with the decision of the Tribunal in this appeal under Art. 136 of the ConstitutionNo specific provision of law has been brought to our notice on behalf of the appellant which rendered the strike illegal during the period under consideration. The strike cannot also be said to be unjustified as before the conclusion of the talks for conciliation which were going on through the instrumentality of Assistant Labour Commissioner, the company retrenched as many as 93 of its workmen without even intimating to the Labour Commissioner that it was carrying out its proposed plan of effecting retrenchment of the workmen. Point No. 1, therefore, is answered in the negative.
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Ikram Khan Vs. State Transport Appellate Tribunal And Ors | GOSWAMI, J.1. The appellant and the respondents 3 and 4 were the former existing stage-carriage operators of Jaipur-Sainthal route which was nationalised on January 25, 1973. All of them applied for the grant of non-temporary stage carriage permits of Jaipur-Padampura route as alternative route permits. The Regional Transport Authority, Jaipur (briefly the RTA) by its order of July 22, 1974, granted non-temporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3. That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent No. 3. The notice of appeal was served upon the appellant but since he did not appear the appeal was heard ex-parte and by its order dated December 17, 1974, the State Transport Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3. The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily. A further appeal by the appellant to the Division Bench met with the same fate. The High Court also refused to grant certificate to appeal to this Court. Hence this appeal by special leave.2. Mr. Bhandare, the learned counsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal (briefly the Tribunal) is invalid inasmuch as the appeal was heard in the absence of a proper notice of appeal as required under the law. He draws our attention to rule 108(c) of the Rajasthan Motor Vehicles Rules. 1951, which reads as follows:---"Upon receipt of an appeal preferred in accordance with sub-rule (b) the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant. not less than thirty days notice thereof".3. Although the above rule does not contain any provision for service of notice on the respondent, it is, however, implicit that a notice similar to one intended under the rule for service on the appellant must also be served on the respondent. Mr. Bhandare could not dispute the factual service of notice on the appellant in view of the Tribunals finding. He however, submits that the notice which was served on the appellant did not recite the place for the hearing of the appeal although the date and time were noted therein. It is true that the Tribunal could not, in law, hear the appeal without intimating the respondent. about the date, time and place for hearing of the appeal but since the appellant had received the notice from the Tribunal indicating the date and time for hearing of the appeal, the omission in the notice to describe the place where the appeal is to be heard is not fatal enough to make the appeal proceeding invalid before the Tribunal. The appellant, admittedly, is a resident of Jaipur where also the office of the Tribunal is situated. He was also a stage carriage permit-holder and not a stranger to the office of the Transport Authorities. Besides, although the notice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place. It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advantage of the mere omission of the place of hearing of the appeal in the notice. Besides, the RTA w as present as provided for under section 64(1) of the Motor Vehicles Act, 1939 (briefly the Act) before the Tribunal to defend its own order. The submission of the appellant is, therefore, of no avail.Mr. Bhandare next submits that the Tribunal failed to comply with section 47 of the Act and did not at all consider the relevant matters (a) to (f) provided therein. It is well settled that in considering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47.4. Before we go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first instance, did not make any reference to the relevant considerations under section 47 of the Act. The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy". There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits. The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such. For example, the condition of the vehicles of the two parties was duly considered by the Tribunal. The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3. This aspect can well arise under clauses (a) and (b) of section 47.5. We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal. The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal. The second submission of the learned counsel also fails.6. | 0[ds]It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advantage of the mere omission of the place of hearing of the appeal in the notice. Besides, the RTA w as present as provided for under section 64(1) ofthe Motor Vehicles Act, 1939 (briefly the Act) before the Tribunal to defend its own order. The submission of the appellant is, therefore, of nowe go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first instance, did not make any reference to the relevant considerations under section 47 of the Act. The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy". There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits. The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such. For example, the condition of the vehicles of the two parties was duly considered by the Tribunal. The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3. This aspect can well arise under clauses (a) and (b) of section 47.We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal. The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal. The second submission of the learned counsel also fails. | 0 | 1,115 | 396 | ### Instruction:
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GOSWAMI, J.1. The appellant and the respondents 3 and 4 were the former existing stage-carriage operators of Jaipur-Sainthal route which was nationalised on January 25, 1973. All of them applied for the grant of non-temporary stage carriage permits of Jaipur-Padampura route as alternative route permits. The Regional Transport Authority, Jaipur (briefly the RTA) by its order of July 22, 1974, granted non-temporary permits to the appellant and respondent No. 4 and rejected the application of respondent No. 3. That led to an appeal to the State Transport AppeLlate Tribunal at Jaipur, Rajasthan, by respondent No. 3. The notice of appeal was served upon the appellant but since he did not appear the appeal was heard ex-parte and by its order dated December 17, 1974, the State Transport Appellate Tribunal set aside the order of the RTA and granted the permit in favour of respondent No. 3. The appellant filed a writ application under Article 226 of the Constitution before the Rajasthan High Court and the learned single Judge by a rather long speaking order dismissed the same summarily. A further appeal by the appellant to the Division Bench met with the same fate. The High Court also refused to grant certificate to appeal to this Court. Hence this appeal by special leave.2. Mr. Bhandare, the learned counsel on behalf of the appellant, submits that the order of the State Transport Appellate Tribunal (briefly the Tribunal) is invalid inasmuch as the appeal was heard in the absence of a proper notice of appeal as required under the law. He draws our attention to rule 108(c) of the Rajasthan Motor Vehicles Rules. 1951, which reads as follows:---"Upon receipt of an appeal preferred in accordance with sub-rule (b) the Appellate Tribunal may appoint a date, time and place for hearing of the Appeal, giving the State Transport Authority, or the Regional Transport Authority, as the case may be, and the appellant. not less than thirty days notice thereof".3. Although the above rule does not contain any provision for service of notice on the respondent, it is, however, implicit that a notice similar to one intended under the rule for service on the appellant must also be served on the respondent. Mr. Bhandare could not dispute the factual service of notice on the appellant in view of the Tribunals finding. He however, submits that the notice which was served on the appellant did not recite the place for the hearing of the appeal although the date and time were noted therein. It is true that the Tribunal could not, in law, hear the appeal without intimating the respondent. about the date, time and place for hearing of the appeal but since the appellant had received the notice from the Tribunal indicating the date and time for hearing of the appeal, the omission in the notice to describe the place where the appeal is to be heard is not fatal enough to make the appeal proceeding invalid before the Tribunal. The appellant, admittedly, is a resident of Jaipur where also the office of the Tribunal is situated. He was also a stage carriage permit-holder and not a stranger to the office of the Transport Authorities. Besides, although the notice of the appeal fixed the date of hearing on October 8, 1974, the appeal was adjourned on that day to October 21, 1974 and again to November 12, 1974 and it was only on December 12, 1974 that the final hearing of the appeal took place. It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advantage of the mere omission of the place of hearing of the appeal in the notice. Besides, the RTA w as present as provided for under section 64(1) of the Motor Vehicles Act, 1939 (briefly the Act) before the Tribunal to defend its own order. The submission of the appellant is, therefore, of no avail.Mr. Bhandare next submits that the Tribunal failed to comply with section 47 of the Act and did not at all consider the relevant matters (a) to (f) provided therein. It is well settled that in considering an application for a stage carriage permit the RTA shall have regard to the matters described in section 47.4. Before we go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first instance, did not make any reference to the relevant considerations under section 47 of the Act. The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy". There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits. The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such. For example, the condition of the vehicles of the two parties was duly considered by the Tribunal. The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3. This aspect can well arise under clauses (a) and (b) of section 47.5. We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal. The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal. The second submission of the learned counsel also fails.6.
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0
### Explanation:
It is, therefore, clear that the appellant was duly notified about the hearing of the appeal and in view of the fact that he did not make any effort to be present during this entire period, when the appeal was pending, he could not be allowed to take advantage of the mere omission of the place of hearing of the appeal in the notice. Besides, the RTA w as present as provided for under section 64(1) ofthe Motor Vehicles Act, 1939 (briefly the Act) before the Tribunal to defend its own order. The submission of the appellant is, therefore, of nowe go to consider about the submission of the learned counsel with reference to the order of the Tribunal it is manifest, on the face of the order of the RTA, that Authority, even at the first instance, did not make any reference to the relevant considerations under section 47 of the Act. The only reason given by the RTA in rejecting the application of respondent No. 3 is that "there is no other vacancy". There is nothing to show that the case of respondent No. 3 was at all considered by the RTA on merits. The Tribunal, on the other hand, has considered various aspects of the matter although without a reference to section 47 as such. For example, the condition of the vehicles of the two parties was duly considered by the Tribunal. The fact that the respondent 3 had a later model of vehicle being 1965 model whereas the appellant had only a 1962 model vehicle tilted the balance in favour of the respondent No. 3. This aspect can well arise under clauses (a) and (b) of section 47.We are unable to say that the relevant considerations under section 47, on the facts and circumstances of the grant of the particular permit, were not kept in view by the Tribunal in considering the appeal. The Tribunal and the learned single Judge duly considered the whole matter and the Division Bench was justified in summarily rejecting the special appeal. The second submission of the learned counsel also fails.
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M/S. Swati Ferro Alloys Pvt.Ltd Vs. Orissa Indl.Infr.Dev.Corpn.(Idco) | facility of Letter of Credit from State Bank of India for Rs.1,50,000/- in the year 1992, which was renewed every year. It has also been sanctioned cash credit limit of Rs.40 lakhs by the State Bank of India in the year 1992 and the same was extended every year, as apparent from letter dated 27.5.1997.12. 2nd respondent also accepted the execution of Tripartite Agreement with the State Bank of India by letter dated 29.1.1998. The Tripartite Agreement clearly states that 2nd respondent had in its custody the title deeds relating to the property of the appellant company. It appears that the appellant persuaded the 2nd respondent for transfer of lease right and title of the appellant since it has taken all the assets of the partnership firm of M/s Eastern Fans. In support of this, the appellant company relied upon letter dated 23.12.2003 issued by the 2nd respondent duly recommending the transfer of title of the plot in favour of the appellant. The grievance of the appellant company is that despite several representations made to 1st respondent between 2003 and 2008 no action was taken by it to transfer the title of the said plot in favour of the appellant company.13. As no action was taken, the appellant company moved before the High Court seeking transfer of the right in their favour, wherein the aforesaid observation was made by the Division Bench of the High Court by impugned judgment dated 18th April, 2012.14. Learned counsel for the appellant submits that all the facts as were pleaded in the writ petition were not disputed by the 1st and 2nd respondents. It was contended that refusal of 1st respondent to transfer the lease of the Plot No.C/9, Industrial Estate, Cuttack in favour of the appellant is wrong, arbitrary and highly illegal and the same was subject to judicial review under Article 226 of the Constitution of India and the High Court erred in dismissing the writ petition holding disputed question of fact merely because 3rd to 5th respondents have opposed the writ petition with a mala fide intention for their vested interests, which cannot be a ground for the High Court to dismiss the writ petition without giving any reasons.15. Respondents have disputed the claim of the appellant to transfer the land in the name of the appellant company.16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the Civil Court for resolving such dispute. 17. From the pleading and record the following fact emerges: The 1st respondent-IDCO allotted Plot no.C/9, Industrial Estate, Cuttack on 18.3.1982 in favour of M/s Prachi Vanijya (P) Ltd. on hire-purchase basis subject to payment of outstanding amount of Rs.9,78,880/- as on 30.11.1986. The appellant has pleaded that the land along with building, shed and fan machines situated at C/9, Industrial Estate, Cuttack were purchased from the 2nd respondent by M/s Eastern Fans on 5.12.1987, of which Sri Satya Narayan Swain was the Managing Partner along with a loan liability of Rs.6,60,000/- of the 2nd respondent. It is not clear as to how M/s Eastern Fans purchased the land from M/s Prachi Vanijya, if the land was originally taken from 1st respondent on hypothecation basis subject to payment of Rs.9,78,880/-. From letter of M/s Eastern Fan dated 10.7.1989, Annexure P-5 (Page 31), we find that the said M/s Eastern Fan intended to setup plant of Ferro alloy in their factory premises at C/9, Industrial Estate, Khapuria, Cuttack and therefore it was decided between themselves and M/s Swati Ferro Alloys Pvt. Ltd. that the appellant-Company will take responsibility to clear the term loan paid by 2nd respondent-Orissa State Financial Corporation along with accrued interest. In the said letter, it was intimated that M/s Eastern Fan intended to start manufacturing activities under the name and style of M/s Swati Ferro Alloys Pvt. Ltd. The appellant company was thereby incorporated by M/s Eastern Fan for the said purpose. Letter dated 9.1.1990 issued by 2nd respondent-Orissa State Financial Corporation to the appellant company shows that the appellant company was intimated that entire assets and liabilities of M/s Prachi Vanijya was transferred to the appellant company and the same was agreed upon by the appellant company on certain terms and conditions. Letter dated 23.12.2003 written by 2nd respondent-Orissa State Financial Corporation to the Managing Director, IDCO, indicates that M/s Eastern Fan availed loan from 2nd respondent and mortgaged the leasehold land in favour of 2nd respondent as security. Letter dated 26.4.1989 written by 1st respondent-IDCO shows that the appellant-company -M/s Swati Ferro Alloys Pvt. Ltd. was allowed only accommodation inside the premises of M/s Eastern Fan for a period of 2 years and they have not given permission for transfer of the land. 18. We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order. | 0[ds]11. From the record we find that the appellant company has also setup a fresh unit for making Ferro Alloys in aluminium thermic process on 27.5.1997 and also taken facility of Letter of Credit from State Bank of India for Rs.1,50,000/- in the year 1992, which was renewed every year. It has also been sanctioned cash credit limit of Rs.40 lakhs by the State Bank of India in the year 1992 and the same was extended every year, as apparent from letter dated 27.5.1997.12. 2nd respondent also accepted the execution of Tripartite Agreement with the State Bank of India by letter dated 29.1.1998. The Tripartite Agreement clearly states that 2nd respondent had in its custody the title deeds relating to the property of the appellant company. It appears that the appellant persuaded the 2nd respondent for transfer of lease right and title of the appellant since it has taken all the assets of the partnership firm of M/s Eastern Fans. In support of this, the appellant company relied upon letter dated 23.12.2003 issued by the 2nd respondent duly recommending the transfer of title of the plot in favour of the appellant. The grievance of the appellant company is that despite several representations made to 1st respondent between 2003 and 2008 no action was taken by it to transfer the title of the said plot in favour of the appellant company.13. As no action was taken, the appellant company moved before the High Court seeking transfer of the right in their favour, wherein the aforesaid observation was made by the Division Bench of the High Court by impugned judgment dated 18th April, 2012.14. Learned counsel for the appellant submits that all the facts as were pleaded in the writ petition were not disputed by the 1st and 2nd respondents. It was contended that refusal of 1st respondent to transfer the lease of the Plot No.C/9, Industrial Estate, Cuttack in favour of the appellant is wrong, arbitrary and highly illegal and the same was subject to judicial review under Article 226 of the Constitution of India and the High Court erred in dismissing the writ petition holding disputed question of fact merely because 3rd to 5th respondents have opposed the writ petition with a mala fide intention for their vested interests, which cannot be a ground for the High Court to dismiss the writ petition without giving any reasons.15. Respondents have disputed the claim of the appellant to transfer the land in the name of the appellant company.16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the Civil Court for resolving such dispute.We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order. | 0 | 2,462 | 697 | ### Instruction:
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facility of Letter of Credit from State Bank of India for Rs.1,50,000/- in the year 1992, which was renewed every year. It has also been sanctioned cash credit limit of Rs.40 lakhs by the State Bank of India in the year 1992 and the same was extended every year, as apparent from letter dated 27.5.1997.12. 2nd respondent also accepted the execution of Tripartite Agreement with the State Bank of India by letter dated 29.1.1998. The Tripartite Agreement clearly states that 2nd respondent had in its custody the title deeds relating to the property of the appellant company. It appears that the appellant persuaded the 2nd respondent for transfer of lease right and title of the appellant since it has taken all the assets of the partnership firm of M/s Eastern Fans. In support of this, the appellant company relied upon letter dated 23.12.2003 issued by the 2nd respondent duly recommending the transfer of title of the plot in favour of the appellant. The grievance of the appellant company is that despite several representations made to 1st respondent between 2003 and 2008 no action was taken by it to transfer the title of the said plot in favour of the appellant company.13. As no action was taken, the appellant company moved before the High Court seeking transfer of the right in their favour, wherein the aforesaid observation was made by the Division Bench of the High Court by impugned judgment dated 18th April, 2012.14. Learned counsel for the appellant submits that all the facts as were pleaded in the writ petition were not disputed by the 1st and 2nd respondents. It was contended that refusal of 1st respondent to transfer the lease of the Plot No.C/9, Industrial Estate, Cuttack in favour of the appellant is wrong, arbitrary and highly illegal and the same was subject to judicial review under Article 226 of the Constitution of India and the High Court erred in dismissing the writ petition holding disputed question of fact merely because 3rd to 5th respondents have opposed the writ petition with a mala fide intention for their vested interests, which cannot be a ground for the High Court to dismiss the writ petition without giving any reasons.15. Respondents have disputed the claim of the appellant to transfer the land in the name of the appellant company.16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the Civil Court for resolving such dispute. 17. From the pleading and record the following fact emerges: The 1st respondent-IDCO allotted Plot no.C/9, Industrial Estate, Cuttack on 18.3.1982 in favour of M/s Prachi Vanijya (P) Ltd. on hire-purchase basis subject to payment of outstanding amount of Rs.9,78,880/- as on 30.11.1986. The appellant has pleaded that the land along with building, shed and fan machines situated at C/9, Industrial Estate, Cuttack were purchased from the 2nd respondent by M/s Eastern Fans on 5.12.1987, of which Sri Satya Narayan Swain was the Managing Partner along with a loan liability of Rs.6,60,000/- of the 2nd respondent. It is not clear as to how M/s Eastern Fans purchased the land from M/s Prachi Vanijya, if the land was originally taken from 1st respondent on hypothecation basis subject to payment of Rs.9,78,880/-. From letter of M/s Eastern Fan dated 10.7.1989, Annexure P-5 (Page 31), we find that the said M/s Eastern Fan intended to setup plant of Ferro alloy in their factory premises at C/9, Industrial Estate, Khapuria, Cuttack and therefore it was decided between themselves and M/s Swati Ferro Alloys Pvt. Ltd. that the appellant-Company will take responsibility to clear the term loan paid by 2nd respondent-Orissa State Financial Corporation along with accrued interest. In the said letter, it was intimated that M/s Eastern Fan intended to start manufacturing activities under the name and style of M/s Swati Ferro Alloys Pvt. Ltd. The appellant company was thereby incorporated by M/s Eastern Fan for the said purpose. Letter dated 9.1.1990 issued by 2nd respondent-Orissa State Financial Corporation to the appellant company shows that the appellant company was intimated that entire assets and liabilities of M/s Prachi Vanijya was transferred to the appellant company and the same was agreed upon by the appellant company on certain terms and conditions. Letter dated 23.12.2003 written by 2nd respondent-Orissa State Financial Corporation to the Managing Director, IDCO, indicates that M/s Eastern Fan availed loan from 2nd respondent and mortgaged the leasehold land in favour of 2nd respondent as security. Letter dated 26.4.1989 written by 1st respondent-IDCO shows that the appellant-company -M/s Swati Ferro Alloys Pvt. Ltd. was allowed only accommodation inside the premises of M/s Eastern Fan for a period of 2 years and they have not given permission for transfer of the land. 18. We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order.
### Response:
0
### Explanation:
11. From the record we find that the appellant company has also setup a fresh unit for making Ferro Alloys in aluminium thermic process on 27.5.1997 and also taken facility of Letter of Credit from State Bank of India for Rs.1,50,000/- in the year 1992, which was renewed every year. It has also been sanctioned cash credit limit of Rs.40 lakhs by the State Bank of India in the year 1992 and the same was extended every year, as apparent from letter dated 27.5.1997.12. 2nd respondent also accepted the execution of Tripartite Agreement with the State Bank of India by letter dated 29.1.1998. The Tripartite Agreement clearly states that 2nd respondent had in its custody the title deeds relating to the property of the appellant company. It appears that the appellant persuaded the 2nd respondent for transfer of lease right and title of the appellant since it has taken all the assets of the partnership firm of M/s Eastern Fans. In support of this, the appellant company relied upon letter dated 23.12.2003 issued by the 2nd respondent duly recommending the transfer of title of the plot in favour of the appellant. The grievance of the appellant company is that despite several representations made to 1st respondent between 2003 and 2008 no action was taken by it to transfer the title of the said plot in favour of the appellant company.13. As no action was taken, the appellant company moved before the High Court seeking transfer of the right in their favour, wherein the aforesaid observation was made by the Division Bench of the High Court by impugned judgment dated 18th April, 2012.14. Learned counsel for the appellant submits that all the facts as were pleaded in the writ petition were not disputed by the 1st and 2nd respondents. It was contended that refusal of 1st respondent to transfer the lease of the Plot No.C/9, Industrial Estate, Cuttack in favour of the appellant is wrong, arbitrary and highly illegal and the same was subject to judicial review under Article 226 of the Constitution of India and the High Court erred in dismissing the writ petition holding disputed question of fact merely because 3rd to 5th respondents have opposed the writ petition with a mala fide intention for their vested interests, which cannot be a ground for the High Court to dismiss the writ petition without giving any reasons.15. Respondents have disputed the claim of the appellant to transfer the land in the name of the appellant company.16. From the bare pleading of the case and the record, we find that there is disputed question of fact about the ownership of the Plot No.C/9, Industrial Estate, Cuttack. Therefore, the High Court was justified in dismissing the same and directing the parties to approach the Civil Court for resolving such dispute.We agree with the observation of the High Court that this matter involves disputed question of fact. Despite the same, prima facie it appears that neither original borrower nor the present appellant does any business in the land in question, except for taking loan against the land. In this background while we upheld the impugned judgment dated 18th April, 2012 passed by the Division Bench of High Court of Orissa at Cuttack in WP(C) No.16790 of 2008, we are of the opinion that the respondent-IDCO should inquire into the matter to find out as to whether the land is properly used by one or other party for the purpose it was open or by opening different firms or companies in different names in same premises, they are availing loan mortgaging the same very land. For such inquiry the respondent-IDCO will issue notice to the 2nd respondent-Orissa State Financial Corporation, appellant-M/s Swati Ferro Alloys Pvt. Ltd., M/s Eastern Fan and any other party who may be interested. On such enquiry it will be open for the competent authority to pass an appropriate order.
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Syndicate Bank, Limited Vs. Its Workmen | service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." 7. We are concerned in the present dispute with exemptions (iii) and (iv) of this definition. Under exemption (iii), a person who is employed mainly in a managerial or administrative capacity is not a workman. Under exemption (iv) a person who is employed in a supervisory capacity, is not a workman provided he draws wages exceeding Rs. 500 per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. It is well-settled that the mere designation by which a person is designated is not conclusive of his status as an officer; the industrial court assigned to the person concerned to decide whether he is a workman or not.In the present case most of the C rank officers are not drawing wages exceeding Rs. 500 per mensem, even assuming that they were doing supervisory work. Therefore, most of them would not be exempt from the category of workmen under exemption (iv), but they would be exempt under exemption (iii) if they are employed mainly in managerial or administrative capacity. Unfortunately this aspect of the matter was not considered by the tribunal. There is no oral evidence at all relevant to the question whether C rank officers are employed mainly in a managerial or administrative capacity. Reliance is however placed on behalf of the workmen on three documents in this connexion. The first is the settlement of June 1957 between the appellant and its workmen before the conciliation officer by which Ranganath Pai who was a probationary C rank officer was reinstated by the Bank. The second is the award of the labour court (central), Ahmedabad, by which Rao, a C rank officer, was ordered to be restored to his grade as C rank officer and an accountant and it was held that an accountant in this bank if he was drawing less than Rs. 500 per mensem was a workman. The third document is the manual of instructions which give the duties and responsibilities of accountants. It is urged on behalf of the respondents it is view of these three documents it is clear that so far at any rate as accountants are concerned it is settled between the parties that they are workmen, even though they may be holding the grade of C rank officer. 8. It seems to us clear from this documentary evidence that accountants in this bank are merely supervisory staff and this bank workmen so long as they are drawing wages up to Rs. 500 per mensem. But it is urged on behalf of the appellant that all C rank officers are not accountants and many of them hold other posts in the bank. Unfortunately again there is no evidence as to what other posts are held by C rank officers, for the attention of the parties was not directed to this aspect of the matter. It is also not clear whether C rank officers holding posts other than accountants are employed mainly in a managerial or administrative capacity. In this connexion our attention is drawn to the circular of April 1962 where it was stated that all officers including C rank officers would have managerial and administrative powers and functions to the extent necessary for the proper discharge of their duties. This general statement, in our opinion, is not enough to clothe all C rank officers with mainly managerial or administrative duties. Before a C rank officer can be taken out of the category of workmen, it must be shown that he is employed in fact and in substance mainly in a managerial or administrative capacity and for that there is no evidence on the record.Further the question becomes complicated because of another circular issued by the appellant on 19 April 1964, shortly before the reference was made. In this circular three classes of officers were created, namely :(i) junior officers who were said to be equal to the existing C rank officers, (ii) assistant senior officers who were said to be equal to the existing B rank officers, and (iii) senior officers who were said to be equal to the existing A rank officers. 9. The circular also stated that there would be no category of accountants in future. The circular further mentioned sub-accountants who would not be officers and would be treated as workmen covered by the National Industrial Tribunal (Bank Disputes) award of June, 1962 (popularly known as the Desai award). In this state of evidence we at one time thought that the case might be remanded to the tribunal for the purposes of determining whether C rank officers are mainly employed in a managerial or administrative capacity in this bank. But we eventually decided not to take this course, because there was no doubt that there are C rank officers who are working as accountants in the appellant-bank; and so far as these are concerned, there can be no doubt that they are workmen in view of the documentary evidence to which we have referred so long as they are drawing wages up to Rs. 500 per mensem. We have therefore come to the conclusion that the tribunal was right in holding that C rank officers whose duties are the same as of accountants and who are drawing wages up to Rs. 500 per mensem are workmen, and in their case the appellant was not justified in imposing the condition to the effect that on promotion as a probationary C rank officer they must agree to be governed by the rules of the bank. | 1[ds]We are of opinion that the first term of reference had implicit in it the question whether C rank officers were workmen or not. If that were not so, there would be no sense in the reference, for if C rank officers were assumed to be, the bank would be justified in prescribing conditions of service with respect to its officers and there could be no reference under the Act with respect to conditions imposed by the bank on its officers who were notworkmen.We are therefore of opinion that the first term of reference when it posed the question whether the appellant was justified in imposing the condition that the workmen promoted as C rank officers would be governed by the rules of the bank as applicable to such officers had impliedly raised the question whether C rank officers were workmen or not, for only on that basis could the reference be made7. We are concerned in the present dispute with exemptions (iii) and (iv) of this definition. Under exemption (iii), a person who is employed mainly in a managerial or administrative capacity is not a workman. Under exemption (iv) a person who is employed in a supervisory capacity, is not a workman provided he draws wages exceeding Rs. 500 per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. It isd that the mere designation by which a person is designated is not conclusive of his status as an officer; the industrial court assigned to the person concerned to decide whether he is a workman or not.In the present case most of the C rank officers are not drawing wages exceeding Rs. 500 per mensem, even assuming that they were doing supervisory work. Therefore, most of them would not be exempt from the category of workmen under exemption (iv), but they would be exempt under exemption (iii) if they are employed mainly in managerial or administrative capacity. Unfortunately this aspect of the matter was not considered by the tribunal. There is no oral evidence at all relevant to the question whether C rank officers are employed mainly in a managerial or administrative capacity. Reliance is however placed on behalf of the workmen on three documents in this connexion. The first is the settlement of June 1957 between the appellant and its workmen before the conciliation officer by which Ranganath Pai who was a probationary C rank officer was reinstated by the Bank. The second is the award of the labour court (central), Ahmedabad, by which Rao, a C rank officer, was ordered to be restored to his grade as C rank officer and an accountant and it was held that an accountant in this bank if he was drawing less than Rs. 500 per mensem was a workman. The third document is the manual of instructions which give the duties and responsibilities of accountants. It is urged on behalf of the respondents it is view of these three documents it is clear that so far at any rate as accountants are concerned it is settled between the parties that they are workmen, even though they may be holding the grade of C rank officer8. It seems to us clear from this documentary evidence that accountants in this bank are merely supervisory staff and this bank workmen so long as they are drawing wages up to Rs. 500 per mensem.But it is urged on behalf of the appellant that all C rank officers are not accountants and many of them hold other posts in the bank. Unfortunately again there is no evidence as to what other posts are held by C rank officers, for the attention of the parties was not directed to this aspect of the matter.It is also not clear whether C rank officers holding posts other than accountants are employed mainly in a managerial or administrative capacity. In this connexion our attention is drawn to the circular of April 1962 where it was stated that all officers including C rank officers would have managerial and administrative powers and functions to the extent necessary for the proper discharge of their duties. This general statement, in our opinion, is not enough to clothe all C rank officers with mainly managerial or administrative duties. Before a C rank officer can be taken out of the category of workmen, it must be shown that he is employed in fact and in substance mainly in a managerial or administrative capacity and for that there is no evidence on the record9. The circular also stated that there would be no category of accountants in future. The circular further mentioneds who would not be officers and would be treated as workmen covered by the National Industrial Tribunal (Bank Disputes) award of June, 1962 (popularly known as the Desai award). In this state of evidence we at one time thought that the case might be remanded to the tribunal for the purposes of determining whether C rank officers are mainly employed in a managerial or administrative capacity in this bank. But we eventually decided not to take this course, because there was no doubt that there are C rank officers who are working as accountants in the; and so far as these are concerned, there can be no doubt that they are workmen in view of the documentary evidence to which we have referred so long as they are drawing wages up to Rs. 500 per mensem. We have therefore come to the conclusion that the tribunal was right in holding that C rank officers whose duties are the same as of accountants and who are drawing wages up to Rs. 500 per mensem are workmen, and in their case the appellant was not justified in imposing the condition to the effect that on promotion as a probationary C rank officer they must agree to be governed by the rules of the bank11.This brings us to the second term of reference. It appears that in addition to the probationary period the bank has imposed on workmen promoted as C rank officers, even though as C rank officers they continue to be workmen, a period of twelve months training during which they are called. We are of opinion that in the case of promotion from a workman to a C rank officer where such an officer is a workman, there is no justification for a further period of training in addition to the probationary period as C rank officer. It is not disputed on behalf of the respondents that even in the case of promotion of a workman as C rank officer where such officer continues to remain as workman, the bank would be justified in imposing a period of probation. We agree with the tribunal that there is no justification for the further imposition of a period of training of twelve months. But we do not agree with the tribunal that there should be no period of probation for members of supervisory staff who are promoted as C rank officers. A period of probation on such promotion for all staff appears to us to be not unjustified, and in view of the respondents concession before us that a period of probation is justified, this part of the award of the tribunal will have to be set aside. | 1 | 3,035 | 1,322 | ### Instruction:
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service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem, or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." 7. We are concerned in the present dispute with exemptions (iii) and (iv) of this definition. Under exemption (iii), a person who is employed mainly in a managerial or administrative capacity is not a workman. Under exemption (iv) a person who is employed in a supervisory capacity, is not a workman provided he draws wages exceeding Rs. 500 per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature. It is well-settled that the mere designation by which a person is designated is not conclusive of his status as an officer; the industrial court assigned to the person concerned to decide whether he is a workman or not.In the present case most of the C rank officers are not drawing wages exceeding Rs. 500 per mensem, even assuming that they were doing supervisory work. Therefore, most of them would not be exempt from the category of workmen under exemption (iv), but they would be exempt under exemption (iii) if they are employed mainly in managerial or administrative capacity. Unfortunately this aspect of the matter was not considered by the tribunal. There is no oral evidence at all relevant to the question whether C rank officers are employed mainly in a managerial or administrative capacity. Reliance is however placed on behalf of the workmen on three documents in this connexion. The first is the settlement of June 1957 between the appellant and its workmen before the conciliation officer by which Ranganath Pai who was a probationary C rank officer was reinstated by the Bank. The second is the award of the labour court (central), Ahmedabad, by which Rao, a C rank officer, was ordered to be restored to his grade as C rank officer and an accountant and it was held that an accountant in this bank if he was drawing less than Rs. 500 per mensem was a workman. The third document is the manual of instructions which give the duties and responsibilities of accountants. It is urged on behalf of the respondents it is view of these three documents it is clear that so far at any rate as accountants are concerned it is settled between the parties that they are workmen, even though they may be holding the grade of C rank officer. 8. It seems to us clear from this documentary evidence that accountants in this bank are merely supervisory staff and this bank workmen so long as they are drawing wages up to Rs. 500 per mensem. But it is urged on behalf of the appellant that all C rank officers are not accountants and many of them hold other posts in the bank. Unfortunately again there is no evidence as to what other posts are held by C rank officers, for the attention of the parties was not directed to this aspect of the matter. It is also not clear whether C rank officers holding posts other than accountants are employed mainly in a managerial or administrative capacity. In this connexion our attention is drawn to the circular of April 1962 where it was stated that all officers including C rank officers would have managerial and administrative powers and functions to the extent necessary for the proper discharge of their duties. This general statement, in our opinion, is not enough to clothe all C rank officers with mainly managerial or administrative duties. Before a C rank officer can be taken out of the category of workmen, it must be shown that he is employed in fact and in substance mainly in a managerial or administrative capacity and for that there is no evidence on the record.Further the question becomes complicated because of another circular issued by the appellant on 19 April 1964, shortly before the reference was made. In this circular three classes of officers were created, namely :(i) junior officers who were said to be equal to the existing C rank officers, (ii) assistant senior officers who were said to be equal to the existing B rank officers, and (iii) senior officers who were said to be equal to the existing A rank officers. 9. The circular also stated that there would be no category of accountants in future. The circular further mentioned sub-accountants who would not be officers and would be treated as workmen covered by the National Industrial Tribunal (Bank Disputes) award of June, 1962 (popularly known as the Desai award). In this state of evidence we at one time thought that the case might be remanded to the tribunal for the purposes of determining whether C rank officers are mainly employed in a managerial or administrative capacity in this bank. But we eventually decided not to take this course, because there was no doubt that there are C rank officers who are working as accountants in the appellant-bank; and so far as these are concerned, there can be no doubt that they are workmen in view of the documentary evidence to which we have referred so long as they are drawing wages up to Rs. 500 per mensem. We have therefore come to the conclusion that the tribunal was right in holding that C rank officers whose duties are the same as of accountants and who are drawing wages up to Rs. 500 per mensem are workmen, and in their case the appellant was not justified in imposing the condition to the effect that on promotion as a probationary C rank officer they must agree to be governed by the rules of the bank.
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in him, functions mainly of a managerial nature. It isd that the mere designation by which a person is designated is not conclusive of his status as an officer; the industrial court assigned to the person concerned to decide whether he is a workman or not.In the present case most of the C rank officers are not drawing wages exceeding Rs. 500 per mensem, even assuming that they were doing supervisory work. Therefore, most of them would not be exempt from the category of workmen under exemption (iv), but they would be exempt under exemption (iii) if they are employed mainly in managerial or administrative capacity. Unfortunately this aspect of the matter was not considered by the tribunal. There is no oral evidence at all relevant to the question whether C rank officers are employed mainly in a managerial or administrative capacity. Reliance is however placed on behalf of the workmen on three documents in this connexion. The first is the settlement of June 1957 between the appellant and its workmen before the conciliation officer by which Ranganath Pai who was a probationary C rank officer was reinstated by the Bank. The second is the award of the labour court (central), Ahmedabad, by which Rao, a C rank officer, was ordered to be restored to his grade as C rank officer and an accountant and it was held that an accountant in this bank if he was drawing less than Rs. 500 per mensem was a workman. The third document is the manual of instructions which give the duties and responsibilities of accountants. It is urged on behalf of the respondents it is view of these three documents it is clear that so far at any rate as accountants are concerned it is settled between the parties that they are workmen, even though they may be holding the grade of C rank officer8. It seems to us clear from this documentary evidence that accountants in this bank are merely supervisory staff and this bank workmen so long as they are drawing wages up to Rs. 500 per mensem.But it is urged on behalf of the appellant that all C rank officers are not accountants and many of them hold other posts in the bank. Unfortunately again there is no evidence as to what other posts are held by C rank officers, for the attention of the parties was not directed to this aspect of the matter.It is also not clear whether C rank officers holding posts other than accountants are employed mainly in a managerial or administrative capacity. In this connexion our attention is drawn to the circular of April 1962 where it was stated that all officers including C rank officers would have managerial and administrative powers and functions to the extent necessary for the proper discharge of their duties. This general statement, in our opinion, is not enough to clothe all C rank officers with mainly managerial or administrative duties. Before a C rank officer can be taken out of the category of workmen, it must be shown that he is employed in fact and in substance mainly in a managerial or administrative capacity and for that there is no evidence on the record9. The circular also stated that there would be no category of accountants in future. The circular further mentioneds who would not be officers and would be treated as workmen covered by the National Industrial Tribunal (Bank Disputes) award of June, 1962 (popularly known as the Desai award). In this state of evidence we at one time thought that the case might be remanded to the tribunal for the purposes of determining whether C rank officers are mainly employed in a managerial or administrative capacity in this bank. But we eventually decided not to take this course, because there was no doubt that there are C rank officers who are working as accountants in the; and so far as these are concerned, there can be no doubt that they are workmen in view of the documentary evidence to which we have referred so long as they are drawing wages up to Rs. 500 per mensem. We have therefore come to the conclusion that the tribunal was right in holding that C rank officers whose duties are the same as of accountants and who are drawing wages up to Rs. 500 per mensem are workmen, and in their case the appellant was not justified in imposing the condition to the effect that on promotion as a probationary C rank officer they must agree to be governed by the rules of the bank11.This brings us to the second term of reference. It appears that in addition to the probationary period the bank has imposed on workmen promoted as C rank officers, even though as C rank officers they continue to be workmen, a period of twelve months training during which they are called. We are of opinion that in the case of promotion from a workman to a C rank officer where such an officer is a workman, there is no justification for a further period of training in addition to the probationary period as C rank officer. It is not disputed on behalf of the respondents that even in the case of promotion of a workman as C rank officer where such officer continues to remain as workman, the bank would be justified in imposing a period of probation. We agree with the tribunal that there is no justification for the further imposition of a period of training of twelve months. But we do not agree with the tribunal that there should be no period of probation for members of supervisory staff who are promoted as C rank officers. A period of probation on such promotion for all staff appears to us to be not unjustified, and in view of the respondents concession before us that a period of probation is justified, this part of the award of the tribunal will have to be set aside.
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Powari Tea Estate Vs. Barkataki (M. K.) and Others | denied all the three items of the charge and added that he had nothing to do with the J. forms, because it was not his duty to deal with those forms. He contended that since notice after notice was being served on him it appeared that the appellant was determined to victimize him, and he requested that the order of suspension passed against him should be withdrawn.Sir Allison then an enquiry against Gohain. At this enquiry, Jagannath Tanti stated that Gohain had taken Rs. 15 from him in order to allow his wife to work on the tea garden, and he added that Chabi Tanti and Chaitto Tanti had witnessed the said payment. Chabi Tanti supported Jagannath Tantis evidence, but Chaitto Tanti did not. Gohain denied the charge. The how the evidence adduced in this case stands.6. Thereafter on June 19, 1957, Sir Allison served an order of dismissal on Gohain in which he stated that at the enquiry held against Gohain on June 15, 1957, he had been found guilty of illegally taking money from labourers. This order of dismissal was passed under S. 10(a)(3) of the standing order. It is this dismissal which is the subject matter of the present appeal. Sri Setalvad contends that in coming to the conclusion that the dismissal of Gohain was not justified, the labour court has, in substance, reappreciated the evidence led at the domestic enquiry as well as the evidence led before it, and that, he argues, was beyond the jurisdiction of the labour court. The we do enquiry in this case has been properly conducted. Gohain was given an opportunity to cross-examine the witnesses against him, and the enquiry officer came to the conclusion that the charges had been proved. In such a case says Sri Setalvad, the labour court cannot sit in judgment over the propriety or correctness of the findings recorded at the enquiry, and inasmuch as the labour court has purported to reappreciate the evidence, it has acted without jurisdiction.7. Prima facie, there is substance in the contention raised by Sri Setalvad. The true legal position about the jurisdiction and powers of the industrial tribunal or the labour court dealing with disputes arising from dismissal of industrial employees, is no longer in doubt; and if the decision reached by the labour court not have been sustained on the ground to which we will presently refer, the criticism made by Sri Setalvad would have justified our interference with the order passed by the labour court. But it appears from the record that the decision reached by the labour court can be justified on another ground to which the labour court has not referred, but which is patent on the record.It is clear that Sri Allison held the enquiry on June 15, 1957, he did not make any report at all all; that he did was to issue the order of dismissal on June 19, 1957. In other words, the enquiry officer held the enquiry and straightway proceeded to issue an order of dismissal.8. We have repeatedly held that though domestic enquiries held by employers in dealing with cases of misconduct alleged against their employees need not conform to all the requirements of judicial proceeding, they must satisfy the essential requirements of natural justice; and since industrial adjudication attaches considerable importance to the findings recorded by the enquiry officer holding a domestic enquiry in such cases, it is essential that the officer should make a brief report indicating clearly his conclusion and reasons in support of it. It is, of course, not necessary that the report should be elaborate; but however brief it is, it should indicate in a broad way the conclusion of the officer and his reason : otherwise, when the legality or propriety of the dismissal which follows such a report, is put in issue before an industrial tribunal or a labour court, it would be impossible for the tribunal or the court to consider whether the conclusion reached by the enquiry officer was perverse or not. Judicial have established the proposition that if the conclusion reached by the enquiry officer in a domestic enquiry is shown to be perverse in the strict legal sense, that would justify industrial adjudication to examine the merits of the dispute between the parties for itself.9. Now how can industrial adjudication deal with the merits of the respondents argument in the present case that the order of dismissal is illegal unless it is possible to ascertain what the enquiry officer decided after the enquiry was held? It is necessary to emphasize that domestic enquiries held against industrial employees must conform to the basic requirement of natural justice, and one of the essential requests of a proceeding of this character is that when the enquiry is over, the officer must consider the evidence and record his conclusions and reasons therefor. The fact that the officer who holds the enquiry against a delinquent employee is competent to dismiss him, cannot possibly help to dispense with the making of the report. The report is a document which will have to be closely examined by the industrial tribunal when a dispute, such as the present, is brought before is for its adjudication. This question has been considered by this court in Khardah & Co., Ltd. v. Its workmen [1963 - II L.L.J. 452] as well as in Balipara Tea Estate, Lokra Assam v. Gopal Chandra Goswami [Civil Appeal No. 827 of 1962 dated 11 November, 1963]. In view of the fact that no report has been made by Sri Allison in the present case, it was competent to the labour court to consider the evidence for itself. It is true that the labour court has not referred to this aspect of the matter; but as we have already indicated, the infirmity in question is patent on the record and so, it is not open to Sri Setalvad to challenge successfully the court adopted by the Labour Court in dealing with the evidence for itself. | 0[ds]4. This charge, no doubt, is not happily worded and the expressions used in it would seem to indicate that Sri Allison had already made up his mind that Gohain was guilty of the misconduct set out in the charge. In the circumstances of this case, however, we do not propose to base our decision on this infirmity in the charge. We will assume that the charge merely intended say that Sri Allison was prima facie satisfied that a case for enquiry had been made out against Gohain. We would only like to emphasize that such incautious and loose language in the charge ought to be avoided, because it is likely to create an apprehension in the mind of the employee chargesheet that the person issuing the charge has already decided the case against him.Prima facie, there is substance in the contention raised by Sri Setalvad. The true legal position about the jurisdiction and powers of the industrial tribunal or the labour court dealing with disputes arising from dismissal of industrial employees, is no longer in doubt; and if the decision reached by the labour court not have been sustained on the ground to which we will presently refer, the criticism made by Sri Setalvad would have justified our interference with the order passed by the labour court. But it appears from the record that the decision reached by the labour court can be justified on another ground to which the labour court has not referred, but which is patent on the record.It is clear that Sri Allison held the enquiry on June 15, 1957, he did not make any report at all all; that he did was to issue the order of dismissal on June 19, 1957. In other words, the enquiry officer held the enquiry and straightway proceeded to issue an order of dismissal.8. We have repeatedly held that though domestic enquiries held by employers in dealing with cases of misconduct alleged against their employees need not conform to all the requirements of judicial proceeding, they must satisfy the essential requirements of natural justice; and since industrial adjudication attaches considerable importance to the findings recorded by the enquiry officer holding a domestic enquiry in such cases, it is essential that the officer should make a brief report indicating clearly his conclusion and reasons in support of it. It is, of course, not necessary that the report should be elaborate; but however brief it is, it should indicate in a broad way the conclusion of the officer and his reason : otherwise, when the legality or propriety of the dismissal which follows such a report, is put in issue before an industrial tribunal or a labour court, it would be impossible for the tribunal or the court to consider whether the conclusion reached by the enquiry officer was perverse or not. Judicial have established the proposition that if the conclusion reached by the enquiry officer in a domestic enquiry is shown to be perverse in the strict legal sense, that would justify industrial adjudication to examine the merits of the dispute between the parties foris necessary to emphasize that domestic enquiries held against industrial employees must conform to the basic requirement of natural justice, and one of the essential requests of a proceeding of this character is that when the enquiry is over, the officer must consider the evidence and record his conclusions and reasons therefor. The fact that the officer who holds the enquiry against a delinquent employee is competent to dismiss him, cannot possibly help to dispense with the making of the report. The report is a document which will have to be closely examined by the industrial tribunal when a dispute, such as the present, is brought before is for its adjudication. This question has been considered by this court in Khardah & Co., Ltd. v. Its workmen [1963II L.L.J. 452] as well as in Balipara Tea Estate, Lokra Assam v. Gopal Chandra Goswami [Civil Appeal No. 827 of 1962 dated 11 November, 1963]. In view of the fact that no report has been made by Sri Allison in the present case, it was competent to the labour court to consider the evidence for itself. It is true that the labour court has not referred to this aspect of the matter; but as we have already indicated, the infirmity in question is patent on the record and so, it is not open to Sri Setalvad to challenge successfully the court adopted by the Labour Court in dealing with the evidence for itself. | 0 | 1,791 | 821 | ### Instruction:
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denied all the three items of the charge and added that he had nothing to do with the J. forms, because it was not his duty to deal with those forms. He contended that since notice after notice was being served on him it appeared that the appellant was determined to victimize him, and he requested that the order of suspension passed against him should be withdrawn.Sir Allison then an enquiry against Gohain. At this enquiry, Jagannath Tanti stated that Gohain had taken Rs. 15 from him in order to allow his wife to work on the tea garden, and he added that Chabi Tanti and Chaitto Tanti had witnessed the said payment. Chabi Tanti supported Jagannath Tantis evidence, but Chaitto Tanti did not. Gohain denied the charge. The how the evidence adduced in this case stands.6. Thereafter on June 19, 1957, Sir Allison served an order of dismissal on Gohain in which he stated that at the enquiry held against Gohain on June 15, 1957, he had been found guilty of illegally taking money from labourers. This order of dismissal was passed under S. 10(a)(3) of the standing order. It is this dismissal which is the subject matter of the present appeal. Sri Setalvad contends that in coming to the conclusion that the dismissal of Gohain was not justified, the labour court has, in substance, reappreciated the evidence led at the domestic enquiry as well as the evidence led before it, and that, he argues, was beyond the jurisdiction of the labour court. The we do enquiry in this case has been properly conducted. Gohain was given an opportunity to cross-examine the witnesses against him, and the enquiry officer came to the conclusion that the charges had been proved. In such a case says Sri Setalvad, the labour court cannot sit in judgment over the propriety or correctness of the findings recorded at the enquiry, and inasmuch as the labour court has purported to reappreciate the evidence, it has acted without jurisdiction.7. Prima facie, there is substance in the contention raised by Sri Setalvad. The true legal position about the jurisdiction and powers of the industrial tribunal or the labour court dealing with disputes arising from dismissal of industrial employees, is no longer in doubt; and if the decision reached by the labour court not have been sustained on the ground to which we will presently refer, the criticism made by Sri Setalvad would have justified our interference with the order passed by the labour court. But it appears from the record that the decision reached by the labour court can be justified on another ground to which the labour court has not referred, but which is patent on the record.It is clear that Sri Allison held the enquiry on June 15, 1957, he did not make any report at all all; that he did was to issue the order of dismissal on June 19, 1957. In other words, the enquiry officer held the enquiry and straightway proceeded to issue an order of dismissal.8. We have repeatedly held that though domestic enquiries held by employers in dealing with cases of misconduct alleged against their employees need not conform to all the requirements of judicial proceeding, they must satisfy the essential requirements of natural justice; and since industrial adjudication attaches considerable importance to the findings recorded by the enquiry officer holding a domestic enquiry in such cases, it is essential that the officer should make a brief report indicating clearly his conclusion and reasons in support of it. It is, of course, not necessary that the report should be elaborate; but however brief it is, it should indicate in a broad way the conclusion of the officer and his reason : otherwise, when the legality or propriety of the dismissal which follows such a report, is put in issue before an industrial tribunal or a labour court, it would be impossible for the tribunal or the court to consider whether the conclusion reached by the enquiry officer was perverse or not. Judicial have established the proposition that if the conclusion reached by the enquiry officer in a domestic enquiry is shown to be perverse in the strict legal sense, that would justify industrial adjudication to examine the merits of the dispute between the parties for itself.9. Now how can industrial adjudication deal with the merits of the respondents argument in the present case that the order of dismissal is illegal unless it is possible to ascertain what the enquiry officer decided after the enquiry was held? It is necessary to emphasize that domestic enquiries held against industrial employees must conform to the basic requirement of natural justice, and one of the essential requests of a proceeding of this character is that when the enquiry is over, the officer must consider the evidence and record his conclusions and reasons therefor. The fact that the officer who holds the enquiry against a delinquent employee is competent to dismiss him, cannot possibly help to dispense with the making of the report. The report is a document which will have to be closely examined by the industrial tribunal when a dispute, such as the present, is brought before is for its adjudication. This question has been considered by this court in Khardah & Co., Ltd. v. Its workmen [1963 - II L.L.J. 452] as well as in Balipara Tea Estate, Lokra Assam v. Gopal Chandra Goswami [Civil Appeal No. 827 of 1962 dated 11 November, 1963]. In view of the fact that no report has been made by Sri Allison in the present case, it was competent to the labour court to consider the evidence for itself. It is true that the labour court has not referred to this aspect of the matter; but as we have already indicated, the infirmity in question is patent on the record and so, it is not open to Sri Setalvad to challenge successfully the court adopted by the Labour Court in dealing with the evidence for itself.
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4. This charge, no doubt, is not happily worded and the expressions used in it would seem to indicate that Sri Allison had already made up his mind that Gohain was guilty of the misconduct set out in the charge. In the circumstances of this case, however, we do not propose to base our decision on this infirmity in the charge. We will assume that the charge merely intended say that Sri Allison was prima facie satisfied that a case for enquiry had been made out against Gohain. We would only like to emphasize that such incautious and loose language in the charge ought to be avoided, because it is likely to create an apprehension in the mind of the employee chargesheet that the person issuing the charge has already decided the case against him.Prima facie, there is substance in the contention raised by Sri Setalvad. The true legal position about the jurisdiction and powers of the industrial tribunal or the labour court dealing with disputes arising from dismissal of industrial employees, is no longer in doubt; and if the decision reached by the labour court not have been sustained on the ground to which we will presently refer, the criticism made by Sri Setalvad would have justified our interference with the order passed by the labour court. But it appears from the record that the decision reached by the labour court can be justified on another ground to which the labour court has not referred, but which is patent on the record.It is clear that Sri Allison held the enquiry on June 15, 1957, he did not make any report at all all; that he did was to issue the order of dismissal on June 19, 1957. In other words, the enquiry officer held the enquiry and straightway proceeded to issue an order of dismissal.8. We have repeatedly held that though domestic enquiries held by employers in dealing with cases of misconduct alleged against their employees need not conform to all the requirements of judicial proceeding, they must satisfy the essential requirements of natural justice; and since industrial adjudication attaches considerable importance to the findings recorded by the enquiry officer holding a domestic enquiry in such cases, it is essential that the officer should make a brief report indicating clearly his conclusion and reasons in support of it. It is, of course, not necessary that the report should be elaborate; but however brief it is, it should indicate in a broad way the conclusion of the officer and his reason : otherwise, when the legality or propriety of the dismissal which follows such a report, is put in issue before an industrial tribunal or a labour court, it would be impossible for the tribunal or the court to consider whether the conclusion reached by the enquiry officer was perverse or not. Judicial have established the proposition that if the conclusion reached by the enquiry officer in a domestic enquiry is shown to be perverse in the strict legal sense, that would justify industrial adjudication to examine the merits of the dispute between the parties foris necessary to emphasize that domestic enquiries held against industrial employees must conform to the basic requirement of natural justice, and one of the essential requests of a proceeding of this character is that when the enquiry is over, the officer must consider the evidence and record his conclusions and reasons therefor. The fact that the officer who holds the enquiry against a delinquent employee is competent to dismiss him, cannot possibly help to dispense with the making of the report. The report is a document which will have to be closely examined by the industrial tribunal when a dispute, such as the present, is brought before is for its adjudication. This question has been considered by this court in Khardah & Co., Ltd. v. Its workmen [1963II L.L.J. 452] as well as in Balipara Tea Estate, Lokra Assam v. Gopal Chandra Goswami [Civil Appeal No. 827 of 1962 dated 11 November, 1963]. In view of the fact that no report has been made by Sri Allison in the present case, it was competent to the labour court to consider the evidence for itself. It is true that the labour court has not referred to this aspect of the matter; but as we have already indicated, the infirmity in question is patent on the record and so, it is not open to Sri Setalvad to challenge successfully the court adopted by the Labour Court in dealing with the evidence for itself.
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Kridhan Infrastructure Pvt Ltd (Now known as Krish Steel and Trading Pvt Ltd) Vs. Venkatesan Sankaranarayan & Ors | issued: (i) The operation of the impugned order of the NCLAT dated 8 September 2020, is stayed; (ii) The appellant shall, in order to demonstrate its ability to implement the Resolution Plan and in compliance with the understanding arrived at on 25 February 2020 deposit an amount of Rs 50 crores, on or before 10 January 2021; and (iii) The auction of the properties of the Corporate Debtor shall remain stayed in the meantime. 10 The appeal shall be listed on 12 January 2021. (emphasis supplied) 4. Subsequently, on 25 November 2020, the above order was clarified by this Court and time for making the deposit was extended until 25 February 2021. 5. Though nearly five months have elapsed since the first order, no payment has been made. Even after second order granting the extension of time, three months have elapsed. The appellant took over the Corporate Debtor after the order of stay. Though given charge, the appellant has not fulfilled its reciprocal obligations. IA 22633 of 2021 has been filed in the Civil Appeal, seeking a direction to the Ministry of Corporate Affairs, the Registrar of Companies and the Insolvency and Bankruptcy Board of India(IBBI) to take on record the newly appointed directors and signatories of the Corporate Debtor; to accept the Corporate Debtor as an active company and change its status from under liquidation to active and generally to take all actions in compliance of the previous orders of this Court. 6. Mr K V Vishwanathan, learned Senior Counsel appearing on behalf of the appellant, submits that pursuant to the earlier orders dated 9 October 2020 and 25 November 2020, the appellant had moved the Term Lenders for finance. However, the appellant submits that before finance can be made available to the appellant, the Term Lenders have insisted that the status of the Company must be altered from that of a company under liquidation, to an active company. A copy of the email addressed by the Insolvency and Bankruptcy Board of India on 15 January 2021 has been annexed to the aforesaid IA. Mr Vishwanathan submits that the previous orders of this Court recognize that the appellant was required to deposit an amount of Rs 50 crores in terms of the understanding which was arrived at with the CoC on 25 February 2020. It has been submitted that the appellant would hence raise the funds after securing a mortgage on the assets of the Corporate Debtor. However, the Term Lenders are not ready and willing to make funds available unless the status of the Company is altered. 7. Ms Meenakshi Arora, learned Senior Counsel appearing on behalf of Edelweiss Asset Reconstruction Company Limited(EARC) , submits that EARC has the largest stake in respect of the Corporate Debtor. Ms Arora has submitted that EARC, as recorded in the earlier orders, supported the appellant in its efforts to comply with the Resolution Plan and, accordingly, suitable orders may be passed by this Court so as to facilitate the appellant in raising the necessary funds. 8. On the other hand, Mr Ashish Makhija, learned counsel, who had appeared on behalf of the Liquidator, submits that though the management was handed over to the appellant, the appellant has proceeded to take action towards settling various disputes, including arbitration matters and despite various opportunities having been granted to it, the appellant has been unable to raise funds, as stated before this Court. Hence, Mr Makhija submits that an appropriate view may be taken by this Court on the default by the appellant. 9. The above submission of Mr Makhija has been controverted by Mr Vishwanathan who denies that arbitration claims have been settled. 10. By the order of the court dated 9 October 2020, which was passed on the statement which was made by Senior Counsel, an amount of Rs 50 crores was required to be deposited before 10 January 2021. On 25 November 2020, while clarifying the earlier order by which the order of NCLAT was stayed, time for the deposit of Rs 50 crores was extended until 25 February 2021. The appellant was clearly put on notice that the amount of Rs. 20 crores already deposited would stand forfeited in the event the appellant fails to comply with the terms of the order. 11. The appellant has been unable to raise the funds. The fact of the matter, as it emerges from Mr Vishwanathans submissions, is that the appellant will be unable to raise funds from the Term Lenders who are insisting that the status of the Company should change from a company under liquidation to an active status. The order of liquidation has not been set aside. Ultimately, what the request of the appellant reduces itself to, is that it would raise funds on a mortgage of the assets of the Company and unless the Company is brought out of liquidation, it would not be in a position to raise the funds. This is unacceptable. At this stage, the order of liquidation has only been stayed, but a final view was, thus, to be taken by this Court. Sufficient opportunities were granted to the appellant earlier during the pendency of the proceedings both before the NCLT and NCLAT. The orders of the NCLT and NCLAT make it abundantly clear that despite the grant of sufficient time, the appellant has not been able to comply with the terms of the Resolution Plan. Since 9 October 2020, despite the passage of almost five months, the appellant has not been able to deposit an amount of Rs 50 crores. Time is a crucial facet of the scheme under the IBC.(Innoventive Industries Ltd. v ICICI Bank, (2018) 1 SCC 407, paras 12-16) To allow such proceedings to lapse into an indefinite delay will plainly defeat the object of the statute. A good faith effort to resolve a corporate insolvency is a preferred course. However a resolution applicant must be fair in its dealings as well. The appellant has failed to abide by its obligations. | 0[ds]10. By the order of the court dated 9 October 2020, which was passed on the statement which was made by Senior Counsel, an amount of Rs 50 crores was required to be deposited before 10 January 2021. On 25 November 2020, while clarifying the earlier order by which the order of NCLAT was stayed, time for the deposit of Rs 50 crores was extended until 25 February 2021. The appellant was clearly put on notice that the amount of Rs. 20 crores already deposited would stand forfeited in the event the appellant fails to comply with the terms of the order.11. The appellant has been unable to raise the funds. The fact of the matter, as it emerges from Mr Vishwanathans submissions, is that the appellant will be unable to raise funds from the Term Lenders who are insisting that the status of the Company should change from a company under liquidation to an active status. The order of liquidation has not been set aside. Ultimately, what the request of the appellant reduces itself to, is that it would raise funds on a mortgage of the assets of the Company and unless the Company is brought out of liquidation, it would not be in a position to raise the funds. This is unacceptable. At this stage, the order of liquidation has only been stayed, but a final view was, thus, to be taken by this Court. Sufficient opportunities were granted to the appellant earlier during the pendency of the proceedings both before the NCLT and NCLAT. The orders of the NCLT and NCLAT make it abundantly clear that despite the grant of sufficient time, the appellant has not been able to comply with the terms of the Resolution Plan. Since 9 October 2020, despite the passage of almost five months, the appellant has not been able to deposit an amount of Rs 50 crores. Time is a crucial facet of the scheme under the IBC.(Innoventive Industries Ltd. v ICICI Bank, (2018) 1 SCC 407, paras 12-16) To allow such proceedings to lapse into an indefinite delay will plainly defeat the object of the statute. A good faith effort to resolve a corporate insolvency is a preferred course. However a resolution applicant must be fair in its dealings as well. The appellant has failed to abide by its obligations. | 0 | 2,434 | 435 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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issued: (i) The operation of the impugned order of the NCLAT dated 8 September 2020, is stayed; (ii) The appellant shall, in order to demonstrate its ability to implement the Resolution Plan and in compliance with the understanding arrived at on 25 February 2020 deposit an amount of Rs 50 crores, on or before 10 January 2021; and (iii) The auction of the properties of the Corporate Debtor shall remain stayed in the meantime. 10 The appeal shall be listed on 12 January 2021. (emphasis supplied) 4. Subsequently, on 25 November 2020, the above order was clarified by this Court and time for making the deposit was extended until 25 February 2021. 5. Though nearly five months have elapsed since the first order, no payment has been made. Even after second order granting the extension of time, three months have elapsed. The appellant took over the Corporate Debtor after the order of stay. Though given charge, the appellant has not fulfilled its reciprocal obligations. IA 22633 of 2021 has been filed in the Civil Appeal, seeking a direction to the Ministry of Corporate Affairs, the Registrar of Companies and the Insolvency and Bankruptcy Board of India(IBBI) to take on record the newly appointed directors and signatories of the Corporate Debtor; to accept the Corporate Debtor as an active company and change its status from under liquidation to active and generally to take all actions in compliance of the previous orders of this Court. 6. Mr K V Vishwanathan, learned Senior Counsel appearing on behalf of the appellant, submits that pursuant to the earlier orders dated 9 October 2020 and 25 November 2020, the appellant had moved the Term Lenders for finance. However, the appellant submits that before finance can be made available to the appellant, the Term Lenders have insisted that the status of the Company must be altered from that of a company under liquidation, to an active company. A copy of the email addressed by the Insolvency and Bankruptcy Board of India on 15 January 2021 has been annexed to the aforesaid IA. Mr Vishwanathan submits that the previous orders of this Court recognize that the appellant was required to deposit an amount of Rs 50 crores in terms of the understanding which was arrived at with the CoC on 25 February 2020. It has been submitted that the appellant would hence raise the funds after securing a mortgage on the assets of the Corporate Debtor. However, the Term Lenders are not ready and willing to make funds available unless the status of the Company is altered. 7. Ms Meenakshi Arora, learned Senior Counsel appearing on behalf of Edelweiss Asset Reconstruction Company Limited(EARC) , submits that EARC has the largest stake in respect of the Corporate Debtor. Ms Arora has submitted that EARC, as recorded in the earlier orders, supported the appellant in its efforts to comply with the Resolution Plan and, accordingly, suitable orders may be passed by this Court so as to facilitate the appellant in raising the necessary funds. 8. On the other hand, Mr Ashish Makhija, learned counsel, who had appeared on behalf of the Liquidator, submits that though the management was handed over to the appellant, the appellant has proceeded to take action towards settling various disputes, including arbitration matters and despite various opportunities having been granted to it, the appellant has been unable to raise funds, as stated before this Court. Hence, Mr Makhija submits that an appropriate view may be taken by this Court on the default by the appellant. 9. The above submission of Mr Makhija has been controverted by Mr Vishwanathan who denies that arbitration claims have been settled. 10. By the order of the court dated 9 October 2020, which was passed on the statement which was made by Senior Counsel, an amount of Rs 50 crores was required to be deposited before 10 January 2021. On 25 November 2020, while clarifying the earlier order by which the order of NCLAT was stayed, time for the deposit of Rs 50 crores was extended until 25 February 2021. The appellant was clearly put on notice that the amount of Rs. 20 crores already deposited would stand forfeited in the event the appellant fails to comply with the terms of the order. 11. The appellant has been unable to raise the funds. The fact of the matter, as it emerges from Mr Vishwanathans submissions, is that the appellant will be unable to raise funds from the Term Lenders who are insisting that the status of the Company should change from a company under liquidation to an active status. The order of liquidation has not been set aside. Ultimately, what the request of the appellant reduces itself to, is that it would raise funds on a mortgage of the assets of the Company and unless the Company is brought out of liquidation, it would not be in a position to raise the funds. This is unacceptable. At this stage, the order of liquidation has only been stayed, but a final view was, thus, to be taken by this Court. Sufficient opportunities were granted to the appellant earlier during the pendency of the proceedings both before the NCLT and NCLAT. The orders of the NCLT and NCLAT make it abundantly clear that despite the grant of sufficient time, the appellant has not been able to comply with the terms of the Resolution Plan. Since 9 October 2020, despite the passage of almost five months, the appellant has not been able to deposit an amount of Rs 50 crores. Time is a crucial facet of the scheme under the IBC.(Innoventive Industries Ltd. v ICICI Bank, (2018) 1 SCC 407, paras 12-16) To allow such proceedings to lapse into an indefinite delay will plainly defeat the object of the statute. A good faith effort to resolve a corporate insolvency is a preferred course. However a resolution applicant must be fair in its dealings as well. The appellant has failed to abide by its obligations.
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10. By the order of the court dated 9 October 2020, which was passed on the statement which was made by Senior Counsel, an amount of Rs 50 crores was required to be deposited before 10 January 2021. On 25 November 2020, while clarifying the earlier order by which the order of NCLAT was stayed, time for the deposit of Rs 50 crores was extended until 25 February 2021. The appellant was clearly put on notice that the amount of Rs. 20 crores already deposited would stand forfeited in the event the appellant fails to comply with the terms of the order.11. The appellant has been unable to raise the funds. The fact of the matter, as it emerges from Mr Vishwanathans submissions, is that the appellant will be unable to raise funds from the Term Lenders who are insisting that the status of the Company should change from a company under liquidation to an active status. The order of liquidation has not been set aside. Ultimately, what the request of the appellant reduces itself to, is that it would raise funds on a mortgage of the assets of the Company and unless the Company is brought out of liquidation, it would not be in a position to raise the funds. This is unacceptable. At this stage, the order of liquidation has only been stayed, but a final view was, thus, to be taken by this Court. Sufficient opportunities were granted to the appellant earlier during the pendency of the proceedings both before the NCLT and NCLAT. The orders of the NCLT and NCLAT make it abundantly clear that despite the grant of sufficient time, the appellant has not been able to comply with the terms of the Resolution Plan. Since 9 October 2020, despite the passage of almost five months, the appellant has not been able to deposit an amount of Rs 50 crores. Time is a crucial facet of the scheme under the IBC.(Innoventive Industries Ltd. v ICICI Bank, (2018) 1 SCC 407, paras 12-16) To allow such proceedings to lapse into an indefinite delay will plainly defeat the object of the statute. A good faith effort to resolve a corporate insolvency is a preferred course. However a resolution applicant must be fair in its dealings as well. The appellant has failed to abide by its obligations.
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P.C. Doshi Vs. 7Th Income Tax Officer, C-I Ward, Bombay | either proper to or at the time of the issue of the notice of demand. The petitioner had requested the authorities to supply to him the order of assessment on the basis of which the notice of demand was issued but he was never supplied with the same. It was in these circumstances that this court took the view that, although the writ petitioner, the delay could not be put against him so as to disentitle him to the relief inasmuch as the notice of demand being a nullity, in the circumstances of the case he could ignore the same and wait until some effective action was taken against him, which really affected his interest. The case does not, in our opinion, lay down a general rule that delay is immaterial where the order sought to be quashed is alleged to be without jurisdiction and the petitioner is entitled to wait until further steps in execution of the order are taken by this court was that, on the facts and circumstances, of the case, the delay was excusable and was not such as to entail the rejection of the writ petition in limine. ( 15 ) IN the present case the orders under sections 35 (7) and 35 (8), which really and effectively affected the interest of the petitioners, were passed as early as in February and March, 1961. The further proceedings were consequential proceedings, which were bound to follow in pursuance of the said order. Although it was the petitioners allegation were substantiated by him and the orders quashed, he could not afford to ignore them and treat them as nullities. It was, therefore, necessary for the petitioners to challenge those orders on a writ petition when they were made and the question as to whether they have sought their remedy without any delay has got to be considered with reference to the point of time when the orders were passed and gave a cause of action to the petitioners to complain about them. The contention urged by the learned counsel for the petitioners, therefore, that, since the petition does not suffer from any gross delay when issued, cannot help him in explaining the delay on his part in challenging the orders which really affect the petitioners interest and which were passed as long back as in 1961. ( 16 ) THE third contention of Mr. Trivedi is that after the order were passed he had sought to get them set aside by way of making applications for rectification and the time taken by him in the said rectification proceedings should be excluded in considering the question of delay. Now, in respect of the order relating to the assessment for the assessment year 1951-52, which was made on the 15th March, 1961, the petitioners appears to have made an application for rectification of the same nearly two years thereafter on the 16th of January, 1963. This application was entertained by the respondent in so far as it really and truly related to a mistake apparent on the face of the order and the rectification was allowed. What had happened was that in the order a double addition of the deemed dividend. He deleted the excess part which had been inadvertently added and rectified the order on the 1st September, 1963. On that date at any rate it was clear to the petitioners that their remedy to persuade the Income-tax Officer to delete the entire inclusion of the deemed dividend had failed. Even thereafter the present application, which is made on the 11th July, 1964, is filed after a period of nearly ten months and there is no explanation whatever offered as to why it had not been made earlier. The writ petition so far as it relates to the order made under section 35 (7) relating to the assessment orders for the assessment year 1951-52 still suffers from gross delay. As to the order made under section 35 (8) relating to the assessment for the year 1950-51, which was made on the 23rd February, 1961, an application for rectification appears to have been made on the 18th January, 1963, and the same has been turned down on the 24th April, 1964. In our opinion, this application was a futile application and could not be regarded as any step taken by the petitioners to have their grievance remedied. The order made under section 35 (8) was made by the respondent on the assumption that he had the jurisdiction to pass the same. It did not suffer from any error apparent on the face of the cord as did the order made for the other assessment year, which had inadvertently included an excess amount as the deemed dividend of the assessee. It was, therefore, impossible for the respondent to entertain the application that the order which he had made on his interpretation of the provisions of law, which gave him jurisdiction to make it, suffered from a patent lack of jurisdiction so as to constitute an error apparent on the face of the record. The petitioners, in our opinion, therefore, cannot get themselves excused on the basic of a futile remedy attempted to have been sought by them, which, it may be pointed out, was also after a lapse of nearly two years after the order complained of was made. It appears to us that this application for rectification of the order made after a period of two years was nothing more than an attempt on her part to save the objection of delay to a writ application which may thereafter be made to the court complaining against the original order. ( 17 ) ALL the three arguments, which have been advanced by Mr. Trivedi for the purpose of getting out of the initial difficulty in his way created by the gross delay in the filing of the present writ petition, fail. As we have already pointed out, the petitioners in their application have given no explanation whatsoever for the delay. | 0[ds]The only course available to thex Officer to include the said divided is by having recourse to proceedings under section 34. Where there is no such inclusion either in the original assessment or in the reassessment of the assessee under section 34, a reassessment of the company and the consequent order under section 23a against the company will not permit the application of section 35 (8) for the purpose of adjusting the assessment of ther on the basis of a mistake apparent from the record.( 12 ) IT is difficult, in the first place, to agree with the submission, at any rate to the whole extent. Secondly, it is difficult to see whether the submission that is advanced can apply to the case. The original assessment which was made on the assessee is not produced before us. Whether in the said original assessment any share of the deemed divided of the company was included or not is not known. It is also not known whether at the time when the assessees assessment was made, an order under section 23a was or was not made against the company. In the absence of proper facts being placed before the court, it is difficult to see whether the submission made by the learned counsel, even if it is substantial, can have application to the present case. Moreover, the argument of the learned counsel that the only way to include the deemed dividend under section 23a in the assessment of the assessee is by having recourse to sections is not correct. Thus, for instance, where even before the assessees assessment is completed there is an order made under section 23a upon the company and thex Officer dealing with the assessees assessment is aware of the same, there is no difficulty in his way in including the deemed dividend of the assessee in the original assessment itself. It is not necessary in such a case that he must first complete the assessment and thereafter reopen it under section 34 for the purpose of inclusion of the deemed divided. It is no doubt true that when at the date of the assessment of the assessee the order under section 23a is not made upon the company or that, even if such an order is made, thex Officer assessing the assessee the assessee is not aware of the same and, subsequently, after the competition of the assessees assessment, he becomes aware of the same or the order is thereafter made, he may have to have recourse to section 34 and reopen the assessment of the assessee on the basis of the subsequent information. In a case, however, where thex Officer has the information about the companys assessment under section 23a and of the share of the deemed divided of the assessee and through inadvertance, oversight or negligence, he omits to include it in the original assessment and realises his mistake, which is obvious and apparent, subsequently, there should, in our opinion, be no difficulty in his way to treat the said omission as a mistake apparent from the record and rectify it under section 35. The argument of the learned counsel, therefore, that in every case recourse must be had to section 34 for the purpose of including the deemed dividend in the assessees assessment does not appear to sustainable. Secondly, in cases falling within the purview of section 35 (8), computation or recomputation of the total income of a partner of the firm is permitted treating the computation or recomputation as a mistake apparent from the record without having recourse to sections or without being hampered by thet prescribed therein. Now one of the cases falling within the purview of section 35 (8) would be, when the firm was originally assessed there was no order under section 23a passed on it, but on subsequent proceedings initiated under section 34 (1) against the firm, it was reassessed and an order section 23a came to be made against it. In such a case, there being no order under section 23a against the firm in the original assessment, there would be no inclusion of any deemed divided in the individual assessment of the partner and the computation of the total income of the partner will obviously not contain any such inclusion. As a result of the order made under section 23a passed on the firm on its reassessment under section 34 (1), recomputation of the total income of the partner will be necessary in order to include therein his share of the deemed dividend. Such a recomputation thex Officer may be able to make by reopening the assessment of the partner under section 34 (1) (b), but it may as well happen that when the order under section 23a comes to be passed against the firm in its reassessment proceedings, the time to reopen the partners assessment under section 34 (1) (b) may have already lapsed. Mr. Trivedi argues that if section 34 (1) (b) proceedings cannot be availed of, thex Officer has no other power to bring the said income to tax. We do not agree with him. It appears to us that thex Officer can also avail of the provisions of section 35 (8) in such a case and recompute the total income of the partner, treating the computation as a mistake apparent from the record within four years of the computation as a mistake apparent from the record within four years of the date of the order under section 23a against the firm and the provision of section 35 (8) is intended to apply to such cases. It seems to us, therefore, that the order passed by thex Officer against the petitioners under section 35 (8) is not without jurisdiction. At any rate, we have no doubt whatsoever that the order under section 35 (8) relating to the assessment for the assessment year1 is not patently without jurisdiction so as to entitle the petitioners to have it quashed on a writ petition irrespective of any delay on their part in approaching the court( 13 ) COMING now to the order passed in relation to the assessment for the assessment year, it would be event from the facts, which we have already narrated, that on the 31st December, 1965, when thex Officer completed the original assessment of the assessee for the said assessment year, he had the information about the section 23a order passed against the company according to which the assessees share of the deemed divided was Rs. 31,568. With that information in his possession, his failure to include the same in the assessees total income could not be regarded as anything else except an obvious or patent mistake through over sing or inadvertence or negligence or lack of mind to the facts on record. It appears that within a short time of making the assessment order he realised his mistake and sought to correct it by an order made under section 35. This order, which he made on the 5th March, 1956, and which was complained of by the assessee in the appeals, which he preferred against the orders of assessment, came to be ultimately deleted by an order of the Appellate Assistant Commissioner on remand to him of the case from the Appellate Tribunal. Thereafter, when in the proceedings initiated under section 34 against the company, a revised order under section 23a read with section 35 (7) came to be passed against the company, the respondent sought to invoke the aid of section 35 (7) for the purpose of giving effect to the said order by rectifying the assessment of the assessee. It is contended by Mr. Trivedi that section 35 (7) was not clearly applicable since that section applies where the order under section 23a is modified in appeal, revision or any other proceeding and not in cases where the company is assessed or reassessed as a result of proceedings initiated under section 34. Mr. Trivedi argues that since in the present case the company was reassessed as a result of proceedings initiated under section 34, the provision applicable was section 35 (8) and not section 35 (7) and consequently the order, which purports to have been passed under section 35 (7), is illegal and without jurisdiction. Here again, we must state, in the first place, that the proper material necessary for the purpose of appreciation of the point has not been put before us by the petitioners. What has been produced as exhibit H purports to be an order made under section 23a read with section 35 (7) and not an order section 23a read with section 34, nor an order under section 23a read with section 35 (8 ). In the body of the order it is stated that in view of the reopening of the assessment under section 34 for the assessment year, the total income of the company is enhanced and the net deemed dividend under section 23a is also revised as specified therein. It would thus be seen that the reopening of the assessment of the company under section 34 resulted not in the passing of an order section 23a as a consequence of the reassessment as contemplated under section 35 (8) but only a revision of the order already passed. Now, section 35 (7) applies to case where the order under section 23a is modified in appeal, revision or any other proceeding or the order is cancelled or varied. The order which is produced before us is a revised order which appears to have been properly passed under section 23a read with section 35 (7) as it is described to be, although the initial reopening of the proceedings might have been on the basis of section 34. It also appears to us that if, as a result of the revision of the order under section 23a made on the company, whether as a result of proceedings under section 34 or by way of appeal or revision, an adjustment was necessary to be made in the assessees assessment, it could be made under section 35 (7) and the action of the respondent in proceeding to make the assessment could not be said to be without jurisdiction. Moreover, even if it were assumed that the proper provision to which he should have had recourse wasn (7), it would make no material difference to the assessees case. Mr. Trivedi has argued that section 35 (8) could not have been resorted to by the officer, although the order under section 23a against the company was revised as a result of the proceedings instituted under section 34 because, if the said section was to be applicable, its operation was only confined to the adjustment required to be made on the difference between the original share of deemed dividend and the revised share of the deemed dividend in accordance with the revised order of the company. In cases falling under section 35 (8), says the learned counsel, the jurisdiction of thex Officer is only confined to recompute the total income and determine the sum payable on the basis of such recomputation as if the recomputation is the rectification of a mistake apparent the total income and determine the sum payable on the basis of such recomputation as if the recomputation is the rectification of a mistake apparent on the face of the record. In other words, argues the learned counsel, what can be deemed to be a mistake apparent on the face of the record. In order words, argues the learned counsel, what relates to the adjustment in consequence of the difference between the original and the recomputed share of the assessee. In the present case thex Officer has made the adjustment including the whole of the deemed dividend as determined by the revised order inasmuch as the original or the unrevised share of the deemed dividend was not included in the assessees original assessment, the purported addition thereof to the assessment having been found to be erroneous and deleted in accordance with the Appellate Assistant Commissioners order. Here again, we may state that it is not as if the original share of the deemed dividend was never included in the assessees income. Although in the original assessment thex Officer had overlooked to include it, he had tried to do it by a subsequent rectification order, which he had made. Unfortunately, however, the said order came to be set aside by the Appellate Assistant Commissioner on the provision of section 35. If the inclusion made in the original assessment had not been wrongly deleted, there was no difficulty of the nature pointed out by Mr. Trivedi in applying the provisions of section 35 (8) to the case. Even otherwise it does not appear to us quite clear that section 35 (8) could not be invoked. The argument of the learned counsel that the recomputation must be combined only to the difference does not appear to us to be invincible. What the section speaks of is the recomputation of the total income of the assessee and the expression total income may permit the addition of the entire amount since the total income is the income on which the tax is liable to be paid. At any rate, the argument advanced by the learned counsel does not convince that there is an error apparent on the face of the record, which would make us ignore the effect of the delay on the part of the petitioners in coming to this court on the present writ application. We cannot, therefore, accept Mr. Trivedis contention that we should overlook the delay in the filing the present petition on the strength of the principles laid own in the cases to which he has made a referenceNow, in that case a notice of demand was served on the petitioner on the 29th March, 1956, intimating to him that a sum of Rs.0 had been determined as payable by him and calling upon him to make the said payment. No order of assessment, however, in pursuance of which the said notice of demand was purported to have been issued was supplied to the petitioner either before or at the time of the said notice of demand. The petitioner made repeated requests to thex Officer to furnish to him the said assessment order and ultimately on the 7th May, 1959, he was informed that the assessment order was not traceable. The department thereafter started the recovery proceedings by issuing a certificate under section 46 (1) of the Indianx Act and on the 16th of August, 1960, prohibitory order came to be issued in the said recovery proceedings. The petitioner requested the authorities to withdraw the said proceedings on the ground that they were patently illegal and without jurisdiction and, since his request was not heeded to, he made the writ petition on the 12th November, 1960, praying for a writ to quash the notice of demand and the recovery proceedings and for directions restraining the respondents from taking any further action in pursuance of the said notice of demand. Now the notice of demand, which could only follow on a proper and legal assessment order having been made in accordance with law, was patently illegal and without jurisdiction inasmuch as no order of assessment had been made or served on the petitioner either proper to or at the time of the issue of the notice of demand. The petitioner had requested the authorities to supply to him the order of assessment on the basis of which the notice of demand was issued but he was never supplied with the same. It was in these circumstances that this court took the view that, although the writ petitioner, the delay could not be put against him so as to disentitle him to the relief inasmuch as the notice of demand being a nullity, in the circumstances of the case he could ignore the same and wait until some effective action was taken against him, which really affected his interest. The case does not, in our opinion, lay down a general rule that delay is immaterial where the order sought to be quashed is alleged to be without jurisdiction and the petitioner is entitled to wait until further steps in execution of the order are taken by this court was that, on the facts and circumstances, of the case, the delay was excusable and was not such as to entail the rejection of the writ petition in limine( 15 ) IN the present case the orders under sections 35 (7) and 35 (8), which really and effectively affected the interest of the petitioners, were passed as early as in February and March, 1961. The further proceedings were consequential proceedings, which were bound to follow in pursuance of the said order. Although it was the petitioners allegation were substantiated by him and the orders quashed, he could not afford to ignore them and treat them as nullities. It was, therefore, necessary for the petitioners to challenge those orders on a writ petition when they were made and the question as to whether they have sought their remedy without any delay has got to be considered with reference to the point of time when the orders were passed and gave a cause of action to the petitioners to complain about them. The contention urged by the learned counsel for the petitioners, therefore, that, since the petition does not suffer from any gross delay when issued, cannot help him in explaining the delay on his part in challenging the orders which really affect the petitioners interest and which were passed as long back as in 1961.( 16 ) THE third contention of Mr. Trivedi is that after the order were passed he had sought to get them set aside by way of making applications for rectification and the time taken by him in the said rectification proceedings should be excluded in considering the question of delay. Now, in respect of the order relating to the assessment for the assessment year, which was made on the 15th March, 1961, the petitioners appears to have made an application for rectification of the same nearly two years thereafter on the 16th of January, 1963. This application was entertained by the respondent in so far as it really and truly related to a mistake apparent on the face of the order and the rectification was allowed. What had happened was that in the order a double addition of the deemed dividend. He deleted the excess part which had been inadvertently added and rectified the order on the 1st September, 1963. On that date at any rate it was clear to the petitioners that their remedy to persuade thex Officer to delete the entire inclusion of the deemed dividend had failed. Even thereafter the present application, which is made on the 11th July, 1964, is filed after a period of nearly ten months and there is no explanation whatever offered as to why it had not been made earlier. The writ petition so far as it relates to the order made under section 35 (7) relating to the assessment orders for the assessment year2 still suffers from gross delay. As to the order made under section 35 (8) relating to the assessment for the year, which was made on the 23rd February, 1961, an application for rectification appears to have been made on the 18th January, 1963, and the same has been turned down on the 24th April, 1964. In our opinion, this application was a futile application and could not be regarded as any step taken by the petitioners to have their grievance remedied. The order made under section 35 (8) was made by the respondent on the assumption that he had the jurisdiction to pass the same. It did not suffer from any error apparent on the face of the cord as did the order made for the other assessment year, which had inadvertently included an excess amount as the deemed dividend of the assessee. It was, therefore, impossible for the respondent to entertain the application that the order which he had made on his interpretation of the provisions of law, which gave him jurisdiction to make it, suffered from a patent lack of jurisdiction so as to constitute an error apparent on the face of the record. The petitioners, in our opinion, therefore, cannot get themselves excused on the basic of a futile remedy attempted to have been sought by them, which, it may be pointed out, was also after a lapse of nearly two years after the order complained of was made. It appears to us that this application for rectification of the order made after a period of two years was nothing more than an attempt on her part to save the objection of delay to a writ application which may thereafter be made to the court complaining against the original order( 17 ) ALL the three arguments, which have been advanced by Mr. Trivedi for the purpose of getting out of the initial difficulty in his way created by the gross delay in the filing of the present writ petition, fail. As we have already pointed out, the petitioners in their application have given no explanation whatsoever for the delay. | 0 | 7,630 | 3,876 | ### Instruction:
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either proper to or at the time of the issue of the notice of demand. The petitioner had requested the authorities to supply to him the order of assessment on the basis of which the notice of demand was issued but he was never supplied with the same. It was in these circumstances that this court took the view that, although the writ petitioner, the delay could not be put against him so as to disentitle him to the relief inasmuch as the notice of demand being a nullity, in the circumstances of the case he could ignore the same and wait until some effective action was taken against him, which really affected his interest. The case does not, in our opinion, lay down a general rule that delay is immaterial where the order sought to be quashed is alleged to be without jurisdiction and the petitioner is entitled to wait until further steps in execution of the order are taken by this court was that, on the facts and circumstances, of the case, the delay was excusable and was not such as to entail the rejection of the writ petition in limine. ( 15 ) IN the present case the orders under sections 35 (7) and 35 (8), which really and effectively affected the interest of the petitioners, were passed as early as in February and March, 1961. The further proceedings were consequential proceedings, which were bound to follow in pursuance of the said order. Although it was the petitioners allegation were substantiated by him and the orders quashed, he could not afford to ignore them and treat them as nullities. It was, therefore, necessary for the petitioners to challenge those orders on a writ petition when they were made and the question as to whether they have sought their remedy without any delay has got to be considered with reference to the point of time when the orders were passed and gave a cause of action to the petitioners to complain about them. The contention urged by the learned counsel for the petitioners, therefore, that, since the petition does not suffer from any gross delay when issued, cannot help him in explaining the delay on his part in challenging the orders which really affect the petitioners interest and which were passed as long back as in 1961. ( 16 ) THE third contention of Mr. Trivedi is that after the order were passed he had sought to get them set aside by way of making applications for rectification and the time taken by him in the said rectification proceedings should be excluded in considering the question of delay. Now, in respect of the order relating to the assessment for the assessment year 1951-52, which was made on the 15th March, 1961, the petitioners appears to have made an application for rectification of the same nearly two years thereafter on the 16th of January, 1963. This application was entertained by the respondent in so far as it really and truly related to a mistake apparent on the face of the order and the rectification was allowed. What had happened was that in the order a double addition of the deemed dividend. He deleted the excess part which had been inadvertently added and rectified the order on the 1st September, 1963. On that date at any rate it was clear to the petitioners that their remedy to persuade the Income-tax Officer to delete the entire inclusion of the deemed dividend had failed. Even thereafter the present application, which is made on the 11th July, 1964, is filed after a period of nearly ten months and there is no explanation whatever offered as to why it had not been made earlier. The writ petition so far as it relates to the order made under section 35 (7) relating to the assessment orders for the assessment year 1951-52 still suffers from gross delay. As to the order made under section 35 (8) relating to the assessment for the year 1950-51, which was made on the 23rd February, 1961, an application for rectification appears to have been made on the 18th January, 1963, and the same has been turned down on the 24th April, 1964. In our opinion, this application was a futile application and could not be regarded as any step taken by the petitioners to have their grievance remedied. The order made under section 35 (8) was made by the respondent on the assumption that he had the jurisdiction to pass the same. It did not suffer from any error apparent on the face of the cord as did the order made for the other assessment year, which had inadvertently included an excess amount as the deemed dividend of the assessee. It was, therefore, impossible for the respondent to entertain the application that the order which he had made on his interpretation of the provisions of law, which gave him jurisdiction to make it, suffered from a patent lack of jurisdiction so as to constitute an error apparent on the face of the record. The petitioners, in our opinion, therefore, cannot get themselves excused on the basic of a futile remedy attempted to have been sought by them, which, it may be pointed out, was also after a lapse of nearly two years after the order complained of was made. It appears to us that this application for rectification of the order made after a period of two years was nothing more than an attempt on her part to save the objection of delay to a writ application which may thereafter be made to the court complaining against the original order. ( 17 ) ALL the three arguments, which have been advanced by Mr. Trivedi for the purpose of getting out of the initial difficulty in his way created by the gross delay in the filing of the present writ petition, fail. As we have already pointed out, the petitioners in their application have given no explanation whatsoever for the delay.
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been made or served on the petitioner either proper to or at the time of the issue of the notice of demand. The petitioner had requested the authorities to supply to him the order of assessment on the basis of which the notice of demand was issued but he was never supplied with the same. It was in these circumstances that this court took the view that, although the writ petitioner, the delay could not be put against him so as to disentitle him to the relief inasmuch as the notice of demand being a nullity, in the circumstances of the case he could ignore the same and wait until some effective action was taken against him, which really affected his interest. The case does not, in our opinion, lay down a general rule that delay is immaterial where the order sought to be quashed is alleged to be without jurisdiction and the petitioner is entitled to wait until further steps in execution of the order are taken by this court was that, on the facts and circumstances, of the case, the delay was excusable and was not such as to entail the rejection of the writ petition in limine( 15 ) IN the present case the orders under sections 35 (7) and 35 (8), which really and effectively affected the interest of the petitioners, were passed as early as in February and March, 1961. The further proceedings were consequential proceedings, which were bound to follow in pursuance of the said order. Although it was the petitioners allegation were substantiated by him and the orders quashed, he could not afford to ignore them and treat them as nullities. It was, therefore, necessary for the petitioners to challenge those orders on a writ petition when they were made and the question as to whether they have sought their remedy without any delay has got to be considered with reference to the point of time when the orders were passed and gave a cause of action to the petitioners to complain about them. The contention urged by the learned counsel for the petitioners, therefore, that, since the petition does not suffer from any gross delay when issued, cannot help him in explaining the delay on his part in challenging the orders which really affect the petitioners interest and which were passed as long back as in 1961.( 16 ) THE third contention of Mr. Trivedi is that after the order were passed he had sought to get them set aside by way of making applications for rectification and the time taken by him in the said rectification proceedings should be excluded in considering the question of delay. Now, in respect of the order relating to the assessment for the assessment year, which was made on the 15th March, 1961, the petitioners appears to have made an application for rectification of the same nearly two years thereafter on the 16th of January, 1963. This application was entertained by the respondent in so far as it really and truly related to a mistake apparent on the face of the order and the rectification was allowed. What had happened was that in the order a double addition of the deemed dividend. He deleted the excess part which had been inadvertently added and rectified the order on the 1st September, 1963. On that date at any rate it was clear to the petitioners that their remedy to persuade thex Officer to delete the entire inclusion of the deemed dividend had failed. Even thereafter the present application, which is made on the 11th July, 1964, is filed after a period of nearly ten months and there is no explanation whatever offered as to why it had not been made earlier. The writ petition so far as it relates to the order made under section 35 (7) relating to the assessment orders for the assessment year2 still suffers from gross delay. As to the order made under section 35 (8) relating to the assessment for the year, which was made on the 23rd February, 1961, an application for rectification appears to have been made on the 18th January, 1963, and the same has been turned down on the 24th April, 1964. In our opinion, this application was a futile application and could not be regarded as any step taken by the petitioners to have their grievance remedied. The order made under section 35 (8) was made by the respondent on the assumption that he had the jurisdiction to pass the same. It did not suffer from any error apparent on the face of the cord as did the order made for the other assessment year, which had inadvertently included an excess amount as the deemed dividend of the assessee. It was, therefore, impossible for the respondent to entertain the application that the order which he had made on his interpretation of the provisions of law, which gave him jurisdiction to make it, suffered from a patent lack of jurisdiction so as to constitute an error apparent on the face of the record. The petitioners, in our opinion, therefore, cannot get themselves excused on the basic of a futile remedy attempted to have been sought by them, which, it may be pointed out, was also after a lapse of nearly two years after the order complained of was made. It appears to us that this application for rectification of the order made after a period of two years was nothing more than an attempt on her part to save the objection of delay to a writ application which may thereafter be made to the court complaining against the original order( 17 ) ALL the three arguments, which have been advanced by Mr. Trivedi for the purpose of getting out of the initial difficulty in his way created by the gross delay in the filing of the present writ petition, fail. As we have already pointed out, the petitioners in their application have given no explanation whatsoever for the delay.
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Srinivas Gundluri and Ors Vs. SEPCO Electric Power Construction Corporation and Ors | ordered investigation under Section 156 (3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156 (3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant/SEPCO under Section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under Section 156 (3) of the Code. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section 3 of Section 156.14) Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is pre-mature and the High Court rightly rejected their request.15) It is true that Dr. Singhvi, learned senior counsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid counter claim for Rs. 10 crores and in such a factual scenario, there is no need to continue the criminal proceedings and prayed for deferment of the same till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the complaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate correctly exercised his jurisdiction under Section 156 (3) and referred the matter for investigation. He also submitted that the complaint very much discloses cognizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are not here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, conduct investigation on the facts mentioned in the complaint and after completion of the investigation submit a report in the Court. We do not find any illegality either in the course adopted by the Magistrate or in ultimate direction to the police.16) Dr. Singhvi has also brought to our notice that the respondent - SEPCO has made another complaint in respect of the same issue before the Chief Metropolitan Magistrate, Hyderabad. According to him, the same is not permissible and the stay granted by the High Court in Crl. M.P. 1307 of 2010 in Crl. R.C. No. 893 of 2010 is justifiable. However, we are not expressing anything on the said complaint and it is for the appropriate Court to consider about the merits of the claim made by both the parties.17) In the light of what has been stated above, we are in agreement with the order dated 20.07.2009 passed by the learned single Judge of the High Court of Chhattisgarh in W.P. No. 3647 of 2009 as well as the order dated 01.04.2010 passed by the Division Bench of the High Court of Chhattisgarh in WA No. 281 of 2009. As on date there is no impediment for the police to investigate and submit report as directed in the order dated 04.07.2009 by Chief Judicial Magistrate, Korba District, Chhattisgarh. Interim orders in respect of all the proceedings including the order dated 27.04.2010 passed by the High Court of Andhra Pradesh in Crl. M.P. No. 1307 of 2010 in Crl. R.C. No. 893 of 2010 are vacated and both parties are at liberty to pursue their remedy in the pending proceedings in accordance with law. | 0[ds]From the above, it is clear that the Magistrate only ordered investigation under Section 156 (3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156 (3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant/SEPCO under Section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under Section 156 (3) of the Code. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in3 of Section 156.14) Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants isand the High Court rightly rejected their request.15) It is true that Dr. Singhvi, learned senior counsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid counter claim for Rs. 10 crores and in such a factual scenario, there is no need to continue the criminal proceedings and prayed for deferment of the same till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the complaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate correctly exercised his jurisdiction under Section 156 (3) and referred the matter for investigation. He also submitted that the complaint very much discloses cognizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are not here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, conduct investigation on the facts mentioned in the complaint and after completion of the investigation submit a report in the Court. We do not find any illegality either in the course adopted by the Magistrate or in ultimate direction to the police.16) Dr. Singhvi has also brought to our notice that the respondentSEPCO has made another complaint in respect of the same issue before the Chief Metropolitan Magistrate, Hyderabad. According to him, the same is not permissible and the stay granted by the High Court in Crl. M.P. 1307 of 2010 in Crl. R.C. No. 893 of 2010 is justifiable. However, we are not expressing anything on the said complaint and it is for the appropriate Court to consider about the merits of the claim made by both the parties.17) In the light of what has been stated above, we are in agreement with the order dated 20.07.2009 passed by the learned single Judge of the High Court of Chhattisgarh in W.P. No. 3647 of 2009 as well as the order dated 01.04.2010 passed by the Division Bench of the High Court of Chhattisgarh in WA No. 281 of 2009. As on date there is no impediment for the police to investigate and submit report as directed in the order dated 04.07.2009 by Chief Judicial Magistrate, Korba District, Chhattisgarh. Interim orders in respect of all the proceedings including the order dated 27.04.2010 passed by the High Court of Andhra Pradesh in Crl. M.P. No. 1307 of 2010 in Crl. R.C. No. 893 of 2010 are vacated and both parties are at liberty to pursue their remedy in the pending proceedings in accordance with law. | 0 | 6,837 | 1,114 | ### Instruction:
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ordered investigation under Section 156 (3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156 (3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant/SEPCO under Section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under Section 156 (3) of the Code. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in sub-section 3 of Section 156.14) Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants is pre-mature and the High Court rightly rejected their request.15) It is true that Dr. Singhvi, learned senior counsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid counter claim for Rs. 10 crores and in such a factual scenario, there is no need to continue the criminal proceedings and prayed for deferment of the same till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the complaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate correctly exercised his jurisdiction under Section 156 (3) and referred the matter for investigation. He also submitted that the complaint very much discloses cognizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are not here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, conduct investigation on the facts mentioned in the complaint and after completion of the investigation submit a report in the Court. We do not find any illegality either in the course adopted by the Magistrate or in ultimate direction to the police.16) Dr. Singhvi has also brought to our notice that the respondent - SEPCO has made another complaint in respect of the same issue before the Chief Metropolitan Magistrate, Hyderabad. According to him, the same is not permissible and the stay granted by the High Court in Crl. M.P. 1307 of 2010 in Crl. R.C. No. 893 of 2010 is justifiable. However, we are not expressing anything on the said complaint and it is for the appropriate Court to consider about the merits of the claim made by both the parties.17) In the light of what has been stated above, we are in agreement with the order dated 20.07.2009 passed by the learned single Judge of the High Court of Chhattisgarh in W.P. No. 3647 of 2009 as well as the order dated 01.04.2010 passed by the Division Bench of the High Court of Chhattisgarh in WA No. 281 of 2009. As on date there is no impediment for the police to investigate and submit report as directed in the order dated 04.07.2009 by Chief Judicial Magistrate, Korba District, Chhattisgarh. Interim orders in respect of all the proceedings including the order dated 27.04.2010 passed by the High Court of Andhra Pradesh in Crl. M.P. No. 1307 of 2010 in Crl. R.C. No. 893 of 2010 are vacated and both parties are at liberty to pursue their remedy in the pending proceedings in accordance with law.
### Response:
0
### Explanation:
is clear that the Magistrate only ordered investigation under Section 156 (3) of the Code. It also shows that the Magistrate perused the complaint without examining the merits of the claim that there is sufficient ground for proceeding or not, directed the police officer concerned for investigation under Section 156 (3) of the Code. As rightly observed by the learned single Judge of the High Court, the Magistrate did not bring into motion the machinery of Chapter XV of the Code. He did not examine the complainant or his witnesses under Section 200 of the Code which is the first step in the procedure prescribed under the said Chapter. The question of taking next step of the procedure envisaged in Section 202 did not arise. As rightly pointed out by Mr. Sundaram, instead of taking cognizance of the offence, the learned Magistrate has merely allowed the application filed by the complainant/SEPCO under Section 156(3) of the Code and sent the same along with its annexure for investigation by the police officer concerned under Section 156 (3) of the Code. To make it clear and in respect of doubt raised by Mr. Singhvi to proceed under Section 156 (3) of the Code, what is required is a bare reading of the complaint and if it discloses a cognizable offence, then the Magistrate instead of applying his mind to the complaint for deciding whether or not there is sufficient ground for proceeding, may direct the police for investigation. In the case on hand, the learned single Judge and Division Bench of the High Court rightly pointed out that the Magistrate did not apply his mind to the complaint for deciding whether or not there is sufficient ground for proceeding and, therefore, we are of the view that the Magistrate has not committed any illegality in directing the police for investigation. In the facts and circumstances, it cannot be said that while directing the police to register FIR, the Magistrate has committed any illegality. As a matter of fact, even after receipt of such report, the Magistrate under Section 190 (1) (b) may or may not take cognizance of offence. In other words, he is not bound to take cognizance upon submission of the police report by the Investigating Officer, hence, by directing the police to file chargesheet or final report and to hold investigation with a particular result cannot be construed that the Magistrate has exceeded his power as provided in3 of Section 156.14) Neither the chargesheet nor the final report has been defined in the Code. The chargesheet or final report whatever may be the nomenclature, it only means a report under Section 173 of the Code which has to be filed by the police officer on completion of his investigation. In view of our discussion, in the case on hand, we are satisfied that the Magistrate in passing the impugned order has not committed any illegality leading to manifest injustice warranting interference by the High Court in exercise of extraordinary jurisdiction conferred under Article 226 of the Constitution of India. We are also satisfied that learned single Judge as well as the Division Bench rightly refused to interfere with the limited order passed by the Magistrate. We also hold that challenge at this stage by the appellants isand the High Court rightly rejected their request.15) It is true that Dr. Singhvi, learned senior counsel for the appellants, highlighted that out of the claim of Rs. 21 crores, Rs. 10 crores have already been paid, the appellants have also laid counter claim for Rs. 10 crores and in such a factual scenario, there is no need to continue the criminal proceedings and prayed for deferment of the same till the outcome of the civil proceedings. However, Mr. Sundaram for SEPCO, by taking us through various allegations in the complaint highlighted that SSVG by misappropriating the advance money for the purpose other than for which it was granted submitted that the Magistrate correctly exercised his jurisdiction under Section 156 (3) and referred the matter for investigation. He also submitted that the complaint very much discloses cognizable offence under Sections 405, 406, 418, 420, 427, 503, 504, 506/34 and 120B of IPC. Whatever may be, we are not here to find out the truth or otherwise of those allegations but the Magistrate is justified in asking to register FIR, conduct investigation on the facts mentioned in the complaint and after completion of the investigation submit a report in the Court. We do not find any illegality either in the course adopted by the Magistrate or in ultimate direction to the police.16) Dr. Singhvi has also brought to our notice that the respondentSEPCO has made another complaint in respect of the same issue before the Chief Metropolitan Magistrate, Hyderabad. According to him, the same is not permissible and the stay granted by the High Court in Crl. M.P. 1307 of 2010 in Crl. R.C. No. 893 of 2010 is justifiable. However, we are not expressing anything on the said complaint and it is for the appropriate Court to consider about the merits of the claim made by both the parties.17) In the light of what has been stated above, we are in agreement with the order dated 20.07.2009 passed by the learned single Judge of the High Court of Chhattisgarh in W.P. No. 3647 of 2009 as well as the order dated 01.04.2010 passed by the Division Bench of the High Court of Chhattisgarh in WA No. 281 of 2009. As on date there is no impediment for the police to investigate and submit report as directed in the order dated 04.07.2009 by Chief Judicial Magistrate, Korba District, Chhattisgarh. Interim orders in respect of all the proceedings including the order dated 27.04.2010 passed by the High Court of Andhra Pradesh in Crl. M.P. No. 1307 of 2010 in Crl. R.C. No. 893 of 2010 are vacated and both parties are at liberty to pursue their remedy in the pending proceedings in accordance with law.
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Ashok Kumar Barik Vs. State of Orissa | 1. A considerable part of the judgment under appeal has been written by the High Court in compassionate tones towards the appellant not for the purposes of the Court but for the State Government to step in and give some remission or reprieve to the appellant 2. The broad facts are these The deceased was a young girl, aged about 17 years on the day of the occurrence. The appellant, a young bright student was engaged to be her private tutor. Parties belong to the same village, about 50 kms away from the town of Cuttack. Having been young, they fell in love with each other. Their respective parents/guardians individually sent them to Cuttack for further studies. Their affection with each other grew. When discovered, it became a sore point with the parents of the deceased because she was from a slightly higher class being goldsmith and the appellant was from an inferior class being barber. Their prospect of matrimony was thus out of the question due to the hard stand taken by the family of the deceased. It is in these circumstances that the appellant allegedly became frustrated which manifested in his wanting to kill his beloved. He took the opportunity on the fateful day when the deceased in the company of PW 3, her old maidservant and PW 5, her sister went out, to answer the call of nature, where the appellant pounced on her and inflicted on her extensive injuries with bhujali, a kind of axe, on the vital parts of her body which did not extinguish her life then. She was then taken to the hospital whereat she was attended to and referred to a larger hospital. She died 7 days after the date of the occurrence. This in a nutshell is the prosecution case 3. At the trial, the prosecution mainly rested on the evidence of PWs 3 and 5 and the corroborative evidence of PW 8, the doctor who attended on the deceased and that of PW 13 who performed the post-mortem examination of the deceased. Relying completely on the statements of PWs 3 and 5, terming PW 3 as an independent witness, the Court of Session recorded conviction of the appellant under Section 304 Part I IPC and sentenced him to seven years rigorous imprisonment. This verdict attracted cross-appeals before the High Court. The High Court altered the verdict establishing guilt of the appellant under Section 302 IPC and sentenced him to life imprisonment, leaving marks in the judgment that it was a case of compassion for the State Government to interfere and save the appellant from some of the rigours of law having regard to his humble background and his intelligence as a student and the achievement he had gained by successfully competing for a job 4. Insofar as the merit of the matter is concerned, the evidence of PWs 3 and 5 stare hard at the appellant. The only comment which could be offered was that PW 5 being the sister of the deceased was interested and PW 3, an old servant of the house was a got-up witness. The latter comment, in our view, was totally misplaced because if there had been any need to bring any got-up witness then somebody else could have been put forth and not PW 3, who was an old woman with very ordinary intelligence. This is how she has been described by the High Court. The High Court has given good reasons for believing the evidence of these two witnesses and going through their testimony, we find that the High Court was right in relying on their word. On the other hand, it was contended that perhaps the parents of the girl had thought of finishing her because of the bad name she had brought to the family and that the appellant was nowhere concerned with it. This argument is that of utter despair. We see no reason why the parents of the girl should choose the cruel way of causing death of their daughter and then pass on the guilt to the appellant. Motive is established on account of frustration in love and, in our view, the appellant stands proved to be guilty. It is a miracle that the deceased survived for seven days after sustaining extensive injuries as deposed to by PWs 8 and 13. The nature and dimension of these injuries as also the manner in which they were inflicted prove beyond doubt that the intention of the appellant was to cause death of the deceased and nothing short of that. We, therefore, have no hesitation in confirming the views expressed by the High Court towards establishment of the guilt of the appellant 5. Insofar as the recommendation made by the High Court to the State Government for showing some concession to the appellant towards remission or reprieve, we need hardly add anything thereto. It is for the State Government to consider the suggestion of the High Court in that behalf. This reaction of the High Court, in the facts and circumstances, is best appreciable at that level and we need not add a word thereto | 0[ds]This is how she has been described by the High Court. The High Court has given good reasons for believing the evidence of these two witnesses and going through their testimony, we find that the High Court was right in relying on their word. On the other hand, it was contended that perhaps the parents of the girl had thought of finishing her because of the bad name she had brought to the family and that the appellant was nowhere concerned with it. This argument is that of utter despair. We see no reason why the parents of the girl should choose the cruel way of causing death of their daughter and then pass on the guilt to the appellant. Motive is established on account of frustration in love and, in our view, the appellant stands proved to be guilty. It is a miracle that the deceased survived for seven days after sustaining extensive injuries as deposed to by PWs 8 and 13. The nature and dimension of these injuries as also the manner in which they were inflicted prove beyond doubt that the intention of the appellant was to cause death of the deceased and nothing short of that. We, therefore, have no hesitation in confirming the views expressed by the High Court towards establishment of the guilt of the appellant | 0 | 918 | 240 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
1. A considerable part of the judgment under appeal has been written by the High Court in compassionate tones towards the appellant not for the purposes of the Court but for the State Government to step in and give some remission or reprieve to the appellant 2. The broad facts are these The deceased was a young girl, aged about 17 years on the day of the occurrence. The appellant, a young bright student was engaged to be her private tutor. Parties belong to the same village, about 50 kms away from the town of Cuttack. Having been young, they fell in love with each other. Their respective parents/guardians individually sent them to Cuttack for further studies. Their affection with each other grew. When discovered, it became a sore point with the parents of the deceased because she was from a slightly higher class being goldsmith and the appellant was from an inferior class being barber. Their prospect of matrimony was thus out of the question due to the hard stand taken by the family of the deceased. It is in these circumstances that the appellant allegedly became frustrated which manifested in his wanting to kill his beloved. He took the opportunity on the fateful day when the deceased in the company of PW 3, her old maidservant and PW 5, her sister went out, to answer the call of nature, where the appellant pounced on her and inflicted on her extensive injuries with bhujali, a kind of axe, on the vital parts of her body which did not extinguish her life then. She was then taken to the hospital whereat she was attended to and referred to a larger hospital. She died 7 days after the date of the occurrence. This in a nutshell is the prosecution case 3. At the trial, the prosecution mainly rested on the evidence of PWs 3 and 5 and the corroborative evidence of PW 8, the doctor who attended on the deceased and that of PW 13 who performed the post-mortem examination of the deceased. Relying completely on the statements of PWs 3 and 5, terming PW 3 as an independent witness, the Court of Session recorded conviction of the appellant under Section 304 Part I IPC and sentenced him to seven years rigorous imprisonment. This verdict attracted cross-appeals before the High Court. The High Court altered the verdict establishing guilt of the appellant under Section 302 IPC and sentenced him to life imprisonment, leaving marks in the judgment that it was a case of compassion for the State Government to interfere and save the appellant from some of the rigours of law having regard to his humble background and his intelligence as a student and the achievement he had gained by successfully competing for a job 4. Insofar as the merit of the matter is concerned, the evidence of PWs 3 and 5 stare hard at the appellant. The only comment which could be offered was that PW 5 being the sister of the deceased was interested and PW 3, an old servant of the house was a got-up witness. The latter comment, in our view, was totally misplaced because if there had been any need to bring any got-up witness then somebody else could have been put forth and not PW 3, who was an old woman with very ordinary intelligence. This is how she has been described by the High Court. The High Court has given good reasons for believing the evidence of these two witnesses and going through their testimony, we find that the High Court was right in relying on their word. On the other hand, it was contended that perhaps the parents of the girl had thought of finishing her because of the bad name she had brought to the family and that the appellant was nowhere concerned with it. This argument is that of utter despair. We see no reason why the parents of the girl should choose the cruel way of causing death of their daughter and then pass on the guilt to the appellant. Motive is established on account of frustration in love and, in our view, the appellant stands proved to be guilty. It is a miracle that the deceased survived for seven days after sustaining extensive injuries as deposed to by PWs 8 and 13. The nature and dimension of these injuries as also the manner in which they were inflicted prove beyond doubt that the intention of the appellant was to cause death of the deceased and nothing short of that. We, therefore, have no hesitation in confirming the views expressed by the High Court towards establishment of the guilt of the appellant 5. Insofar as the recommendation made by the High Court to the State Government for showing some concession to the appellant towards remission or reprieve, we need hardly add anything thereto. It is for the State Government to consider the suggestion of the High Court in that behalf. This reaction of the High Court, in the facts and circumstances, is best appreciable at that level and we need not add a word thereto
### Response:
0
### Explanation:
This is how she has been described by the High Court. The High Court has given good reasons for believing the evidence of these two witnesses and going through their testimony, we find that the High Court was right in relying on their word. On the other hand, it was contended that perhaps the parents of the girl had thought of finishing her because of the bad name she had brought to the family and that the appellant was nowhere concerned with it. This argument is that of utter despair. We see no reason why the parents of the girl should choose the cruel way of causing death of their daughter and then pass on the guilt to the appellant. Motive is established on account of frustration in love and, in our view, the appellant stands proved to be guilty. It is a miracle that the deceased survived for seven days after sustaining extensive injuries as deposed to by PWs 8 and 13. The nature and dimension of these injuries as also the manner in which they were inflicted prove beyond doubt that the intention of the appellant was to cause death of the deceased and nothing short of that. We, therefore, have no hesitation in confirming the views expressed by the High Court towards establishment of the guilt of the appellant
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Dr. Satyabrata Dutta Choudhury Vs. State of Assam and Others | Shinghal, J.1. These two appeals by special leave are directed against a common judgment of the High Court of Assam and Nagaland dated 13th August, 1971. They arise out of facts which are common, and both the cases have been argued together by the counsel for the parties. We shall, therefore, dispose of them by this judgment.2. The facts which have been admitted before us are quite simple and may be stated shortly. Dr. Satyabrata Dutta Choudhury, appellant in Civil Appeal No. 1454 of 1972, and Dr. Guru Prasad Sarma, appellant in Civil Appeal No. 1456 of 1972, were appointed as Registrars in Surgery in Government colleges of Assam in 1961 under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as the Regulations). They were then appointed Assistant Professors of Surgery under Regulation 3(e), and took over charge on April 23, 1962. Thereafter respondents Dr. Hamiduddin Ahmed, Dr. Pradipta Kumar Das Gupta and Dr. Jotimoy Dutta were similarly appointed as Assistant Professors of Surgery. The Assam Public Service Commission was consulted in regard to recruitment to the posts. It interviewed the appellants and the respondents in September, 1963, along with some other candidates. The Commission recommended, in its letter dated October 3, 1963, that Dr. Hamiduddin Ahmed. (respondent No. 4), Dr. P. K. Das Gupta (respondent No. 5) Dr. Jotimoy Dutta (respondent No. 6) Dr. S. D. Choudhury (appellant) and Dr. Guru Prasad Sarma (appellant) may be appointed Assistant Professors of Surgery, in that order. They were accordingly appointed as Assistant Professors by a notification dated December 9, 1963. It was stated in the notification that the inter se seniority of the officers would be decided and notified in due course. That was done by a notification dated May 14, 1964 by which the appellants were made junior to respondent Nos. 4, 5 and 6. The appellants made representations against the fixation of their seniority but to no avail. In the mean time, respondents 4 and 5 were promoted as Professors of Surgery on April 25, 1964, under Regulation 4(d) of the Regulation. A provisional seniority list of Assistant Professors was also notified. The appellants felt aggrieved and filed separate writ petitions in the High Court. Both the petitions were dismissed by the judgment under appeal.3. The High Court has taken the view that although there was no statutory rule for fixation of inter se seniority of persons recruited through the Assam Public Service Commission, the following instructions of the State Government notified under Notification No. A.B.P. 51/63/1, dated February 5, 1964, would govern the seniority, -"10.2. Appointments made under Regulations 3(e) and 3(f) of the A.P.S.C. (Limitations of Functions) Regulations and later regularised though the A.P.S.C. :Normally the appointments made under these two Regulations should be regularised within the time specified in the Regulation itself. The seniority of the persons whose appointment have been regularised should be determined as follows :(i) If the appointments of two persons are regularised, earlier should be considered senior to the persons whose appointments were regularised later.(ii) If the appointments of a number of persons are regularised on one batch, then the inter se seniority of these persons should be according to the merit list of A.P.S.C. Even if the A.P.S.C. does not give any merit list, the appointing authority should request the A.P.S.C. to indicate the order of preference of these persons."The High Court has stated in its judgment that the inter se seniority of the appellants and the respondents "was fixed on the recommendation of the Assam Public Service Commission" under the notification, and that fact has not been controverted before us.4. What has been argued is that as the appellants joined earlier as Assistant Professors, they were entitled to rank senior to the respondents who joined later. Reference in this connection has been made to Art. 16 of the Constitution.5. It is not in dispute that the appellants and respondents 4, 5, and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis, to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible. The appointments were the defeasible, and could not give rise to any legal right in favour of the parties. It is therefore futile be contend that as the appellants jointed as Assistant Professors on an earlier date, they were entitled to rank senior to respondents 4, 5 and 6 irrespective of the result of the final recruitment through the Service Commission.6. It is no doubt true that no rule had been made to govern the seniority of Assistant Professors, but it is not in controversy that Government had notified the aforesaid instructions dated February 2, 1964 in regard to the seniority of the persons appointed under Regulations 3(e) and 3(f) of the Regulations. As the appointments of the appellants and respondents Nos. 4, 5 and 6 were admittedly regularised in one batch, after reference to the Service Commission, by the order dated December 9, 1963, their inter se seniority had to be determined according to the merit list of the Commission. As has been pointed out, it is not in dispute that the impugned seniority list has been fixed on the recommendation of the Commission, so that it is in accordance with the instructions of the Government. The High Court has, therefore, rightly held that the instructions would hold the field in the absence of the service rules. | 0[ds]4. What has been argued is that as the appellants joined earlier as Assistant Professors, they were entitled to rank senior to the respondents who joined later. Reference in this connection has been made to Art. 16 of the Constitution.5. It is not in dispute that the appellants and respondents 4, 5, and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis, to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible. The appointments were the defeasible, and could not give rise to any legal right in favour of the parties. It is therefore futile be contend that as the appellants jointed as Assistant Professors on an earlier date, they were entitled to rank senior to respondents 4, 5 and 6 irrespective of the result of the final recruitment through the Service Commission.6. It is no doubt true that no rule had been made to govern the seniority of Assistant Professors, but it is not in controversy that Government had notified the aforesaid instructions dated February 2, 1964 in regard to the seniority of the persons appointed under Regulations 3(e) and 3(f) of the Regulations. As the appointments of the appellants and respondents Nos. 4, 5 and 6 were admittedly regularised in one batch, after reference to the Service Commission, by the order dated December 9, 1963, their inter se seniority had to be determined according to the merit list of the Commission. As has been pointed out, it is not in dispute that the impugned seniority list has been fixed on the recommendation of the Commission, so that it is in accordance with the instructions of the Government. The High Court has, therefore, rightly held that the instructions would hold the field in the absence of the service rules. | 0 | 1,074 | 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.
### Input:
Shinghal, J.1. These two appeals by special leave are directed against a common judgment of the High Court of Assam and Nagaland dated 13th August, 1971. They arise out of facts which are common, and both the cases have been argued together by the counsel for the parties. We shall, therefore, dispose of them by this judgment.2. The facts which have been admitted before us are quite simple and may be stated shortly. Dr. Satyabrata Dutta Choudhury, appellant in Civil Appeal No. 1454 of 1972, and Dr. Guru Prasad Sarma, appellant in Civil Appeal No. 1456 of 1972, were appointed as Registrars in Surgery in Government colleges of Assam in 1961 under Regulation 3(f) of the Assam Public Service Commission (Limitation of Functions) Regulations, 1951 (hereinafter referred to as the Regulations). They were then appointed Assistant Professors of Surgery under Regulation 3(e), and took over charge on April 23, 1962. Thereafter respondents Dr. Hamiduddin Ahmed, Dr. Pradipta Kumar Das Gupta and Dr. Jotimoy Dutta were similarly appointed as Assistant Professors of Surgery. The Assam Public Service Commission was consulted in regard to recruitment to the posts. It interviewed the appellants and the respondents in September, 1963, along with some other candidates. The Commission recommended, in its letter dated October 3, 1963, that Dr. Hamiduddin Ahmed. (respondent No. 4), Dr. P. K. Das Gupta (respondent No. 5) Dr. Jotimoy Dutta (respondent No. 6) Dr. S. D. Choudhury (appellant) and Dr. Guru Prasad Sarma (appellant) may be appointed Assistant Professors of Surgery, in that order. They were accordingly appointed as Assistant Professors by a notification dated December 9, 1963. It was stated in the notification that the inter se seniority of the officers would be decided and notified in due course. That was done by a notification dated May 14, 1964 by which the appellants were made junior to respondent Nos. 4, 5 and 6. The appellants made representations against the fixation of their seniority but to no avail. In the mean time, respondents 4 and 5 were promoted as Professors of Surgery on April 25, 1964, under Regulation 4(d) of the Regulation. A provisional seniority list of Assistant Professors was also notified. The appellants felt aggrieved and filed separate writ petitions in the High Court. Both the petitions were dismissed by the judgment under appeal.3. The High Court has taken the view that although there was no statutory rule for fixation of inter se seniority of persons recruited through the Assam Public Service Commission, the following instructions of the State Government notified under Notification No. A.B.P. 51/63/1, dated February 5, 1964, would govern the seniority, -"10.2. Appointments made under Regulations 3(e) and 3(f) of the A.P.S.C. (Limitations of Functions) Regulations and later regularised though the A.P.S.C. :Normally the appointments made under these two Regulations should be regularised within the time specified in the Regulation itself. The seniority of the persons whose appointment have been regularised should be determined as follows :(i) If the appointments of two persons are regularised, earlier should be considered senior to the persons whose appointments were regularised later.(ii) If the appointments of a number of persons are regularised on one batch, then the inter se seniority of these persons should be according to the merit list of A.P.S.C. Even if the A.P.S.C. does not give any merit list, the appointing authority should request the A.P.S.C. to indicate the order of preference of these persons."The High Court has stated in its judgment that the inter se seniority of the appellants and the respondents "was fixed on the recommendation of the Assam Public Service Commission" under the notification, and that fact has not been controverted before us.4. What has been argued is that as the appellants joined earlier as Assistant Professors, they were entitled to rank senior to the respondents who joined later. Reference in this connection has been made to Art. 16 of the Constitution.5. It is not in dispute that the appellants and respondents 4, 5, and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis, to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible. The appointments were the defeasible, and could not give rise to any legal right in favour of the parties. It is therefore futile be contend that as the appellants jointed as Assistant Professors on an earlier date, they were entitled to rank senior to respondents 4, 5 and 6 irrespective of the result of the final recruitment through the Service Commission.6. It is no doubt true that no rule had been made to govern the seniority of Assistant Professors, but it is not in controversy that Government had notified the aforesaid instructions dated February 2, 1964 in regard to the seniority of the persons appointed under Regulations 3(e) and 3(f) of the Regulations. As the appointments of the appellants and respondents Nos. 4, 5 and 6 were admittedly regularised in one batch, after reference to the Service Commission, by the order dated December 9, 1963, their inter se seniority had to be determined according to the merit list of the Commission. As has been pointed out, it is not in dispute that the impugned seniority list has been fixed on the recommendation of the Commission, so that it is in accordance with the instructions of the Government. The High Court has, therefore, rightly held that the instructions would hold the field in the absence of the service rules.
### Response:
0
### Explanation:
4. What has been argued is that as the appellants joined earlier as Assistant Professors, they were entitled to rank senior to the respondents who joined later. Reference in this connection has been made to Art. 16 of the Constitution.5. It is not in dispute that the appellants and respondents 4, 5, and 6 were initially appointed Assistant Professors under Regulation 3(e) of the Regulations, on an officiating basis, to avoid delay, and it was obligatory, in terms of that regulation, to consult the Service Commission as soon as possible. The appointments were the defeasible, and could not give rise to any legal right in favour of the parties. It is therefore futile be contend that as the appellants jointed as Assistant Professors on an earlier date, they were entitled to rank senior to respondents 4, 5 and 6 irrespective of the result of the final recruitment through the Service Commission.6. It is no doubt true that no rule had been made to govern the seniority of Assistant Professors, but it is not in controversy that Government had notified the aforesaid instructions dated February 2, 1964 in regard to the seniority of the persons appointed under Regulations 3(e) and 3(f) of the Regulations. As the appointments of the appellants and respondents Nos. 4, 5 and 6 were admittedly regularised in one batch, after reference to the Service Commission, by the order dated December 9, 1963, their inter se seniority had to be determined according to the merit list of the Commission. As has been pointed out, it is not in dispute that the impugned seniority list has been fixed on the recommendation of the Commission, so that it is in accordance with the instructions of the Government. The High Court has, therefore, rightly held that the instructions would hold the field in the absence of the service rules.
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Commissioner Of Income Tax Vs. M/S. All India Tea And Trading Co. Ltd | the decision of the Andhra Pradesh High Court in the case of Pydah Suryanarayana Murty v. CIT. Our attention was also drawn to the decision of the Assam High Court in the case of Senairam Doongarmall v. State of Assam 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which was a case arising under the Assam Agricultural Income Tax Act, 1939 (9 of 1939) and it was held therein that the compensation received on the requisitioning of the factory and some other buildings of a tea estate did not represent agricultural income. 10. In our opinion the decision of the High Court calls for no interference. Agricultural income is defined under Section 2(1) of the Income Tax Act, 1922 and the relevant portion thereof is as follows. "agricultural income means -(a) Any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such." * 11. The finding of fact in the present case is that even after the requisition of the land, the refugees were carrying our agricultural operations on the land in question. Therefore, one of the requirements of Section 2(1) of the Income Tax Act, 1922, namely, that the land is used for agricultural purposes stands satisfied. The only question which has been considered is whether the amount of compensation which was received can be regarded as rent or revenue which can be said to be derived from land. In our opinion, the answer to the said question is obvious. The land in question continued to vest with the respondent during the relevant assessment year. On the requisitioning of the land, possession of the same was taken and the refugees were put in possession for which compensation was paid to the respondent. In a sense the refugees became statutory or compulsory tenants and for parting with the physical possession of the land, on which agricultural operations continued to be carried on, compensation was paid. This compensation clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from the land. If the respondent had voluntarily given the land on lease and had received the sum of Rs 1, 24, 638 as rent, the same would not have been taxable as it would admittedly be agricultural income. What happened in this case was that instead of voluntarily giving this land on rent to the refugees the said land has been given to them by the order of requisition being passed by the State of Assam. The amount received is directly related to the requisitioned land on which agricultural operations continued to be carried on by the refugees during the year in question and this amount has to be regarded as agricultural income as defined by Section 2(1) of the Income Tax Act, 1922. 12. The decision in Suryanarayana Murty case distinguishable because in that case the facts were that the agricultural land was requisitioned for military purposes under the Defence of India Act, 1939 and compensation was paid in respect thereof. It was held that as the military authorities had not carried on agricultural operations on the lands, the compensation received by the assessee was not agricultural income. In the present case, however, the finding of fact is that the refugees, to whom the lands were allotted did carry out agricultural operations. Therefore, the compensation has to be regarded as agricultural income. In Senairam Doongarmall v. CIT buildings had been requisitioned for defence purposes and the manufacture of tea had stopped. The question arose as to whether the compensation received for the requisitioning of the building was taxable as income. This Court came to the conclusion that the assessee did not carry on any business after the requisition of its factory and other buildings and, therefore, the amount received could not be regarded as profits and gains of business taxable under Section 10 of the Income Tax Act. This decision can be of no assistance to the appellant because in the present case the respondent continued its business activities. Further, whereas in Senairam Doongarmall case.13. The other decision relied upon by the learned counsel for the appellant, namely, Member, Board of Agricultural Income Tax v. Sindhurani Chaudhurani has also no bearing on the point in issue because in that case the question which arose for was whether the salami paid by the tenant to the landlord could be regarded as agricultural income or not. It was held that the salami was neither rent nor revenue. But in the present case we are not concerned with the payment of salami. This case relates to payment of compensation for the requisition of land which is very different from payment of salami by a tenant. The decision of the Assam High Court in Senairam Doongarmall case 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which related to the Assam Agricultural Income Tax Act, is again not relevant because that case related to requisition of factory and buildings of the assessee and not of any agricultural land. 14. Before concluding we may note that the respondents land which was requisitioned was subsequently acquired by the State of Assam and compensation was paid. In CIT v. All India Tea and Trading Co. Ltd. (Cal)) it was held that as the land in question was agricultural land which was being used for agricultural purposes, even after its being requisitioned, the amount of compensation paid on its acquisition was not taxable under the head "capital gains" as the said land was not a capital asset. It is clear, therefore, that at no point of time or at least till its acquisition the land lost its character of agricultural land. Therefore, compensation paid for the use by the refugees of the said land for agricultural purposes can only be regarded as agricultural income which admittedly is not taxable. | 0[ds]11. The finding of fact in the present case is that even after the requisition of the land, the refugees were carrying our agricultural operations on the land in question. Therefore, one of the requirements of Section 2(1) of the Income Tax Act, 1922, namely, that the land is used for agricultural purposes stands satisfied. The only question which has been considered is whether the amount of compensation which was received can be regarded as rent or revenue which can be said to be derived from land. In our opinion, the answer to the said question is obvious. The land in question continued to vest with the respondent during the relevant assessment year. On the requisitioning of the land, possession of the same was taken and the refugees were put in possession for which compensation was paid to the respondent. In a sense the refugees became statutory or compulsory tenants and for parting with the physical possession of the land, on which agricultural operations continued to be carried on, compensation was paid. This compensation clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from the land. If the respondent had voluntarily given the land on lease and had received the sum of Rs 1, 24, 638 as rent, the same would not have been taxable as it would admittedly be agricultural income. What happened in this case was that instead of voluntarily giving this land on rent to the refugees the said land has been given to them by the order of requisition being passed by the State of Assam. The amount received is directly related to the requisitioned land on which agricultural operations continued to be carried on by the refugees during the year in question and this amount has to be regarded as agricultural income as defined by Section 2(1) of the Income Tax Act,The decision in Suryanarayana Murty case distinguishable because in that case the facts were that the agricultural land was requisitioned for military purposes under the Defence of India Act, 1939 and compensation was paid in respect thereof. It was held that as the military authorities had not carried on agricultural operations on the lands, the compensation received by the assessee was not agricultural income. In the present case, however, the finding of fact is that the refugees, to whom the lands were allotted did carry out agricultural operations. Therefore, the compensation has to be regarded as agricultural income. In Senairam Doongarmall v. CIT buildings had been requisitioned for defence purposes and the manufacture of tea had stopped. The question arose as to whether the compensation received for the requisitioning of the building was taxable as income. This Court came to the conclusion that the assessee did not carry on any business after the requisition of its factory and other buildings and, therefore, the amount received could not be regarded as profits and gains of business taxable under Section 10 of the Income Tax Act. This decision can be of no assistance to the appellant because in the present case the respondent continued its business activities. Further, whereas in Senairam Doongarmall case.13. The other decision relied upon by the learned counsel for the appellant, namely, Member, Board of Agricultural Income Tax v. Sindhurani Chaudhurani has also no bearing on the point in issue because in that case the question which arose for was whether the salami paid by the tenant to the landlord could be regarded as agricultural income or not. It was held that the salami was neither rent nor revenue. But in the present case we are not concerned with the payment of salami. This case relates to payment of compensation for the requisition of land which is very different from payment of salami by a tenant. The decision of the Assam High Court in Senairam Doongarmall case 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which related to the Assam Agricultural Income Tax Act, is again not relevant because that case related to requisition of factory and buildings of the assessee and not of any agriculturalBefore concluding we may note that the respondents land which was requisitioned was subsequently acquired by the State of Assam and compensation was paid. In CIT v. All India Tea and Trading Co. Ltd. (Cal)) it was held that as the land in question was agricultural land which was being used for agricultural purposes, even after its being requisitioned, the amount of compensation paid on its acquisition was not taxable under the head "capital gains" as the said land was not a capital asset. It is clear, therefore, that at no point of time or at least till its acquisition the land lost its character of agricultural land. Therefore, compensation paid for the use by the refugees of the said land for agricultural purposes can only be regarded as agricultural income which admittedly is not taxable | 0 | 1,864 | 905 | ### Instruction:
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the decision of the Andhra Pradesh High Court in the case of Pydah Suryanarayana Murty v. CIT. Our attention was also drawn to the decision of the Assam High Court in the case of Senairam Doongarmall v. State of Assam 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which was a case arising under the Assam Agricultural Income Tax Act, 1939 (9 of 1939) and it was held therein that the compensation received on the requisitioning of the factory and some other buildings of a tea estate did not represent agricultural income. 10. In our opinion the decision of the High Court calls for no interference. Agricultural income is defined under Section 2(1) of the Income Tax Act, 1922 and the relevant portion thereof is as follows. "agricultural income means -(a) Any rent or revenue derived from land which is used for agricultural purposes, and is either assessed to land revenue in the taxable territories or subject to a local rate assessed and collected by officers of the Government as such." * 11. The finding of fact in the present case is that even after the requisition of the land, the refugees were carrying our agricultural operations on the land in question. Therefore, one of the requirements of Section 2(1) of the Income Tax Act, 1922, namely, that the land is used for agricultural purposes stands satisfied. The only question which has been considered is whether the amount of compensation which was received can be regarded as rent or revenue which can be said to be derived from land. In our opinion, the answer to the said question is obvious. The land in question continued to vest with the respondent during the relevant assessment year. On the requisitioning of the land, possession of the same was taken and the refugees were put in possession for which compensation was paid to the respondent. In a sense the refugees became statutory or compulsory tenants and for parting with the physical possession of the land, on which agricultural operations continued to be carried on, compensation was paid. This compensation clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from the land. If the respondent had voluntarily given the land on lease and had received the sum of Rs 1, 24, 638 as rent, the same would not have been taxable as it would admittedly be agricultural income. What happened in this case was that instead of voluntarily giving this land on rent to the refugees the said land has been given to them by the order of requisition being passed by the State of Assam. The amount received is directly related to the requisitioned land on which agricultural operations continued to be carried on by the refugees during the year in question and this amount has to be regarded as agricultural income as defined by Section 2(1) of the Income Tax Act, 1922. 12. The decision in Suryanarayana Murty case distinguishable because in that case the facts were that the agricultural land was requisitioned for military purposes under the Defence of India Act, 1939 and compensation was paid in respect thereof. It was held that as the military authorities had not carried on agricultural operations on the lands, the compensation received by the assessee was not agricultural income. In the present case, however, the finding of fact is that the refugees, to whom the lands were allotted did carry out agricultural operations. Therefore, the compensation has to be regarded as agricultural income. In Senairam Doongarmall v. CIT buildings had been requisitioned for defence purposes and the manufacture of tea had stopped. The question arose as to whether the compensation received for the requisitioning of the building was taxable as income. This Court came to the conclusion that the assessee did not carry on any business after the requisition of its factory and other buildings and, therefore, the amount received could not be regarded as profits and gains of business taxable under Section 10 of the Income Tax Act. This decision can be of no assistance to the appellant because in the present case the respondent continued its business activities. Further, whereas in Senairam Doongarmall case.13. The other decision relied upon by the learned counsel for the appellant, namely, Member, Board of Agricultural Income Tax v. Sindhurani Chaudhurani has also no bearing on the point in issue because in that case the question which arose for was whether the salami paid by the tenant to the landlord could be regarded as agricultural income or not. It was held that the salami was neither rent nor revenue. But in the present case we are not concerned with the payment of salami. This case relates to payment of compensation for the requisition of land which is very different from payment of salami by a tenant. The decision of the Assam High Court in Senairam Doongarmall case 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which related to the Assam Agricultural Income Tax Act, is again not relevant because that case related to requisition of factory and buildings of the assessee and not of any agricultural land. 14. Before concluding we may note that the respondents land which was requisitioned was subsequently acquired by the State of Assam and compensation was paid. In CIT v. All India Tea and Trading Co. Ltd. (Cal)) it was held that as the land in question was agricultural land which was being used for agricultural purposes, even after its being requisitioned, the amount of compensation paid on its acquisition was not taxable under the head "capital gains" as the said land was not a capital asset. It is clear, therefore, that at no point of time or at least till its acquisition the land lost its character of agricultural land. Therefore, compensation paid for the use by the refugees of the said land for agricultural purposes can only be regarded as agricultural income which admittedly is not taxable.
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0
### Explanation:
11. The finding of fact in the present case is that even after the requisition of the land, the refugees were carrying our agricultural operations on the land in question. Therefore, one of the requirements of Section 2(1) of the Income Tax Act, 1922, namely, that the land is used for agricultural purposes stands satisfied. The only question which has been considered is whether the amount of compensation which was received can be regarded as rent or revenue which can be said to be derived from land. In our opinion, the answer to the said question is obvious. The land in question continued to vest with the respondent during the relevant assessment year. On the requisitioning of the land, possession of the same was taken and the refugees were put in possession for which compensation was paid to the respondent. In a sense the refugees became statutory or compulsory tenants and for parting with the physical possession of the land, on which agricultural operations continued to be carried on, compensation was paid. This compensation clearly had the character of rent or in any case, has to be regarded as being revenue which was derived from the land. If the respondent had voluntarily given the land on lease and had received the sum of Rs 1, 24, 638 as rent, the same would not have been taxable as it would admittedly be agricultural income. What happened in this case was that instead of voluntarily giving this land on rent to the refugees the said land has been given to them by the order of requisition being passed by the State of Assam. The amount received is directly related to the requisitioned land on which agricultural operations continued to be carried on by the refugees during the year in question and this amount has to be regarded as agricultural income as defined by Section 2(1) of the Income Tax Act,The decision in Suryanarayana Murty case distinguishable because in that case the facts were that the agricultural land was requisitioned for military purposes under the Defence of India Act, 1939 and compensation was paid in respect thereof. It was held that as the military authorities had not carried on agricultural operations on the lands, the compensation received by the assessee was not agricultural income. In the present case, however, the finding of fact is that the refugees, to whom the lands were allotted did carry out agricultural operations. Therefore, the compensation has to be regarded as agricultural income. In Senairam Doongarmall v. CIT buildings had been requisitioned for defence purposes and the manufacture of tea had stopped. The question arose as to whether the compensation received for the requisitioning of the building was taxable as income. This Court came to the conclusion that the assessee did not carry on any business after the requisition of its factory and other buildings and, therefore, the amount received could not be regarded as profits and gains of business taxable under Section 10 of the Income Tax Act. This decision can be of no assistance to the appellant because in the present case the respondent continued its business activities. Further, whereas in Senairam Doongarmall case.13. The other decision relied upon by the learned counsel for the appellant, namely, Member, Board of Agricultural Income Tax v. Sindhurani Chaudhurani has also no bearing on the point in issue because in that case the question which arose for was whether the salami paid by the tenant to the landlord could be regarded as agricultural income or not. It was held that the salami was neither rent nor revenue. But in the present case we are not concerned with the payment of salami. This case relates to payment of compensation for the requisition of land which is very different from payment of salami by a tenant. The decision of the Assam High Court in Senairam Doongarmall case 1953 AIR(Ass) 65 : 1953 (5) ILR(Ass) 55 ), which related to the Assam Agricultural Income Tax Act, is again not relevant because that case related to requisition of factory and buildings of the assessee and not of any agriculturalBefore concluding we may note that the respondents land which was requisitioned was subsequently acquired by the State of Assam and compensation was paid. In CIT v. All India Tea and Trading Co. Ltd. (Cal)) it was held that as the land in question was agricultural land which was being used for agricultural purposes, even after its being requisitioned, the amount of compensation paid on its acquisition was not taxable under the head "capital gains" as the said land was not a capital asset. It is clear, therefore, that at no point of time or at least till its acquisition the land lost its character of agricultural land. Therefore, compensation paid for the use by the refugees of the said land for agricultural purposes can only be regarded as agricultural income which admittedly is not taxable
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Jitendra Khimshankar Trivedi Vs. Kasam Daud Kumbhar | appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. [(2003) 2 SCC 274] , Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. [(2009) 6 SCC 280] , and Ningamma & Anr. vs. United India Insurance Company Ltd. [(2009) 13 SCC 710] . As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation. 14. In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors. [(2013) 9 SCC 54] , and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. [(2013) 9 SCC 166] , this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-. 15. As against the award passed by the tribunal even though the claimants have not preferred any appeal and even though the claimants have then prayed for compensation of Rs.2,96,480/-, for doing complete justice to the parties, exercising jurisdiction under Article 142 of the Constitution of India, we deem it appropriate to award enhanced compensation of Rs. 6,47,000/ to the claimants. 16. In situation of this nature, for doing complete justice to the parties, this Court has always exercised the jurisdiction under Article 142 of the Constitution of India. In Oriental Insurance Company Limited vs. Brij Mohan and Ors., [(2007) 7 SCC 56] this Court held as under:- "13.However, Respondent 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realise the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. 14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties". In Deddappa & Ors. vs. Branch Manager, National Insurance Company Limited, [(2008) 2 SCC 595] it was observed as under:- "26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly". 17. The next question falling for our consideration is the rate of interest to be awarded. The tribunal has awarded interest at the rate of 15 per cent which was reduced to 12 per cent by the High Court. The rate of interest awarded by both the courts is on higher side. In Amresh Kumari vs. Niranjan Lal Jagdish Prasad Jain & Ors. [2010) ACJ 551] and Mohinder Kaur & Ors. vs. Hira Nand Sindhi (Ghoriwala) and Anr. [(2007) ACJ 2123], this Court has awarded the compensation amount payable to the claimants with interest at the rate of 9 per cent. 18. The compensation reduced by the High Court from Rs.2,24,000/- to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum of compensation claimed is Rs.2,96,480/- i.e. payable with interest at the rate of 9 per cent from the date of the filing of the claim petition till the date of payment. So far as the enhanced compensation of Rs.3,50,520/- is payable with interest at the rate of 9 per cent from the date of filing of the special leave petition till the date of realization. The enhanced compensation of Rs.3,50,520/- alongwith accrued interest shall be equally divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi, Ku. Preeti Jitendra Trivedi (husband and daughter respectively of the deceased- Jayvantiben Jitendra Khimshankar) in equal share. | 1[ds]8. Admittedly, claimants adduced only oral testimony of the witnesses to substantiate their claim that deceased was self-employed and was earning Rs.900/- per month. Smt. Godavariben Khimshankar Trivedi-mother-in-law and Shri Khimshankar Raguram Trivedi, father-in-law have deposed to the effect that deceased at the time of accident was doing tailoring, embroidery and knitting and was earning Rs.900/- per month. They further deposed that their daughters were also doing the same work as the deceased Jayvantiben Jitendra Trivedi was then doing and that their daughters were earning Rs.3,000/- per month and had the deceased been alive, she would have also earned Rs.3,000/- per monthThough in their cross-examination, Smt. Godavariben Khimshankar Trivedi and Khimshankar Raguram Trivedi deposed that they did not keep voucher and account books, reasoning of the tribunal that the embroidery and tailoring work is doing well in the district of Kachchh and that the deceased would have earned not less than Rs.1,500/- per month is well merited. It is to be pointed out that the respondents have not adduced any evidence to prove that the deceased was not doing any embroidery or tailoring work or the like. While so, in the light of the factual findings recorded by the tribunal, High Court was not justified in reducing the income of the deceased to Rs.1,350/- per month from Rs.1,500/-14. In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors. [(2013) 9 SCC 54] , and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. [(2013) 9 SCC 166] , this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-15. As against the award passed by the tribunal even though the claimants have not preferred any appeal and even though the claimants have then prayed for compensation of Rs.2,96,480/-, for doing complete justice to the parties, exercising jurisdiction under Article 142 of the Constitution of India, we deem it appropriate to award enhanced compensation of Rs. 6,47,000/ to the claimants18. The compensation reduced by the High Court from Rs.2,24,000/- to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum of compensation claimed is Rs.2,96,480/- i.e. payable with interest at the rate of 9 per cent from the date of the filing of the claim petition till the date of payment. So far as the enhanced compensation of Rs.3,50,520/- is payable with interest at the rate of 9 per cent from the date of filing of the special leave petition till the date of realization. The enhanced compensation of Rs.3,50,520/- alongwith accrued interest shall be equally divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi, Ku. Preeti Jitendra Trivedi (husband and daughter respectively of the deceased- Jayvantiben Jitendra Khimshankar) in equal share. | 1 | 2,695 | 706 | ### Instruction:
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appeal. As against the award passed by the tribunal when the claimants have not filed any appeal, the question arises whether the income of the deceased could be increased and compensation could be enhanced. In terms of Section 168 of the Motor Vehicles Act, the courts/tribunals are to pass awards determining the amount of compensation as to be fair and reasonable and accepted by the legal standards. The power of the courts in awarding reasonable compensation was emphasized by this Court in Nagappa vs. Gurudayal Singh & Ors. [(2003) 2 SCC 274] , Oriental Insurance Company Ltd. vs. Mohd. Nasir & Anr. [(2009) 6 SCC 280] , and Ningamma & Anr. vs. United India Insurance Company Ltd. [(2009) 13 SCC 710] . As against the award passed by the tribunal even though the claimants have not filed any appeal, as it is obligatory on the part of courts/tribunals to award just and reasonable compensation, it is appropriate to increase the compensation. 14. In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors. [(2013) 9 SCC 54] , and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. [(2013) 9 SCC 166] , this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-. 15. As against the award passed by the tribunal even though the claimants have not preferred any appeal and even though the claimants have then prayed for compensation of Rs.2,96,480/-, for doing complete justice to the parties, exercising jurisdiction under Article 142 of the Constitution of India, we deem it appropriate to award enhanced compensation of Rs. 6,47,000/ to the claimants. 16. In situation of this nature, for doing complete justice to the parties, this Court has always exercised the jurisdiction under Article 142 of the Constitution of India. In Oriental Insurance Company Limited vs. Brij Mohan and Ors., [(2007) 7 SCC 56] this Court held as under:- "13.However, Respondent 1 is a poor labourer. He had suffered grievous injuries. He had become disabled to a great extent. The amount of compensation awarded in his favour appears to be on a lower side. In the aforementioned situation, although we reject the other contentions of Ms Indu Malhotra, we are inclined to exercise our extraordinary jurisdiction under Article 142 of the Constitution of India so as to direct that the award may be satisfied by the appellant but it would be entitled to realise the same from the owner of the tractor and the trolley wherefor it would not be necessary for it to initiate any separate proceedings for recovery of the amount as provided for under the Motor Vehicles Act. 14. It is well settled that in a situation of this nature this Court in exercise of its jurisdiction under Article 142 of the Constitution of India read with Article 136 thereof can issue suit directions for doing complete justice to the parties". In Deddappa & Ors. vs. Branch Manager, National Insurance Company Limited, [(2008) 2 SCC 595] it was observed as under:- "26. However, as the appellant hails from the lowest strata of society, we are of the opinion that in a case of this nature, we should, in exercise of our extraordinary jurisdiction under Article 142 of the Constitution of India, direct Respondent 1 to pay the amount of claim to the appellants herein and recover the same from the owner of the vehicle viz. Respondent 2, particularly in view of the fact that no appeal was preferred by him. We direct accordingly". 17. The next question falling for our consideration is the rate of interest to be awarded. The tribunal has awarded interest at the rate of 15 per cent which was reduced to 12 per cent by the High Court. The rate of interest awarded by both the courts is on higher side. In Amresh Kumari vs. Niranjan Lal Jagdish Prasad Jain & Ors. [2010) ACJ 551] and Mohinder Kaur & Ors. vs. Hira Nand Sindhi (Ghoriwala) and Anr. [(2007) ACJ 2123], this Court has awarded the compensation amount payable to the claimants with interest at the rate of 9 per cent. 18. The compensation reduced by the High Court from Rs.2,24,000/- to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum of compensation claimed is Rs.2,96,480/- i.e. payable with interest at the rate of 9 per cent from the date of the filing of the claim petition till the date of payment. So far as the enhanced compensation of Rs.3,50,520/- is payable with interest at the rate of 9 per cent from the date of filing of the special leave petition till the date of realization. The enhanced compensation of Rs.3,50,520/- alongwith accrued interest shall be equally divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi, Ku. Preeti Jitendra Trivedi (husband and daughter respectively of the deceased- Jayvantiben Jitendra Khimshankar) in equal share.
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8. Admittedly, claimants adduced only oral testimony of the witnesses to substantiate their claim that deceased was self-employed and was earning Rs.900/- per month. Smt. Godavariben Khimshankar Trivedi-mother-in-law and Shri Khimshankar Raguram Trivedi, father-in-law have deposed to the effect that deceased at the time of accident was doing tailoring, embroidery and knitting and was earning Rs.900/- per month. They further deposed that their daughters were also doing the same work as the deceased Jayvantiben Jitendra Trivedi was then doing and that their daughters were earning Rs.3,000/- per month and had the deceased been alive, she would have also earned Rs.3,000/- per monthThough in their cross-examination, Smt. Godavariben Khimshankar Trivedi and Khimshankar Raguram Trivedi deposed that they did not keep voucher and account books, reasoning of the tribunal that the embroidery and tailoring work is doing well in the district of Kachchh and that the deceased would have earned not less than Rs.1,500/- per month is well merited. It is to be pointed out that the respondents have not adduced any evidence to prove that the deceased was not doing any embroidery or tailoring work or the like. While so, in the light of the factual findings recorded by the tribunal, High Court was not justified in reducing the income of the deceased to Rs.1,350/- per month from Rs.1,500/-14. In order to award just and reasonable compensation income of the deceased is taken as Rs.3000/- per month. Deducting 1/3rd for personal expenses contribution of the deceased and the family is calculated at Rs.2,000/- per month. At the time of her death deceased Jayvantiben was aged about 22 years, proper multiplier to be adopted is 18. Adopting multiplier of 18, total loss of dependency is calculated at Rs.4,32,000/- (Rs.2000 x 12 x 18). With respect to the award of compensation under conventional heads, tribunal has awarded Rs.5,000/- towards loss of estate and Rs.3,000/- towards funeral expenses totaling Rs.8,000/-. The High Court has awarded conventional damages of Rs.15,000/- i.e. Rs.10,000/- towards loss of estate and Rs.5,000/- towards funeral expenses. The courts below have not awarded any compensation towards loss of consortium and towards love and affection. In Rajesh & Ors. vs. Rajbir Singh & Ors. [(2013) 9 SCC 54] , and Jiju Kuruvila & Ors. vs. Kunjujamma Mohan & Ors. [(2013) 9 SCC 166] , this Court has awarded substantial amount of Rs.1,00,000/- towards loss of consortium and Rs.1,00,000/- towards loss of love and affection. Following the same, in the case in hand, Rs.1,00,000/- is awarded towards loss of consortium and Rs.1,00,000/- towards loss of love and affection to the minor children. Towards loss of estate and funeral expenses, award of compensation of Rs.15,000/- awarded by the High Court is maintained. Thus, the claimants are entitled to a total compensation of Rs.6,47,000/-15. As against the award passed by the tribunal even though the claimants have not preferred any appeal and even though the claimants have then prayed for compensation of Rs.2,96,480/-, for doing complete justice to the parties, exercising jurisdiction under Article 142 of the Constitution of India, we deem it appropriate to award enhanced compensation of Rs. 6,47,000/ to the claimants18. The compensation reduced by the High Court from Rs.2,24,000/- to Rs.2,09,400/- is enhanced to Rs.6,47,000/-. The quantum of compensation claimed is Rs.2,96,480/- i.e. payable with interest at the rate of 9 per cent from the date of the filing of the claim petition till the date of payment. So far as the enhanced compensation of Rs.3,50,520/- is payable with interest at the rate of 9 per cent from the date of filing of the special leave petition till the date of realization. The enhanced compensation of Rs.3,50,520/- alongwith accrued interest shall be equally divided between the appellants No.1 and 4 Jitendra Khimshankar Trivedi, Ku. Preeti Jitendra Trivedi (husband and daughter respectively of the deceased- Jayvantiben Jitendra Khimshankar) in equal share.
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H. H. Maharaj Rana Hemant Singhji, Dholpur Vs. Commissloner Of Income-Tax, Rajasthan | him;"The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant. A close scrutiny of the context an; which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessses person. In other words, , an intimate connection between the effects and the person of the assessee must be shown to exist to render them "personal effects".The enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of "personal effects" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.The meaning assigned to the expression "personal effects" m various dictionaries also lends support to this view. In the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning: -"Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc. for intimate use by an individual".In Blacks Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning:"Personal effects. Articles associated with person, as property having more or less intimate relation to person of possessor;"In Cyclopedic Law Dictionary, Third Edition, at page 832, the expression "personal effects without qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.In Words and Phrases (Permanent Edition), Volume 32 at page 277 it is stated that the words "personal effects" when used without qualification, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person. At another place at the same page, it is stated that the words "personal effects" are used to designate articles associated with person, as property having more or less intimate relation to person of possessor or such tangible property as attends the person.6. Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver bars or bullion can by no stretch of imagination be deemed to be "effects" meant for personal use. Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of Sharadh Pakh for Maha Lakshmi Puja and for worship on the occasion of Diwali festival can not also be designated as effects meant for personal use. They may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use. As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the asses see, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.The language of section 5(1)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression "personal effects" as given in section 2(4A) (ii) of the Act is also helpful in cons truing the latter provision. That provision runs as follows:-"5. (1) Subject to the provisions of sub-section (1-A), wealth-tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee............................(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee but not including jewellery;"7. In S. Poddar v. The Commissioner of Wealth Tax, Bombay City-II(I.L.R. [1965] Bom.1062.) where the assessee at the time of his appointment in the year 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray, , two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959-60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use. It meant normally, commonly, or ordinarily intended for personal or household use. This in our opinion is the true concept of the expression "personal use".It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth-Tax Act.The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna ( supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.8. We are, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appellant and as such could not be excluded while computing the gains.9. | 0[ds]In S. Poddar v. The Commissioner of Wealth Tax, Bombay City-II(I.L.R. [1965] Bom.1062.) where the assessee at the time of his appointment in the year 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray, , two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959-60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) ofthe Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use. It meant normally, commonly, or ordinarily intended for personal or household use. This in our opinion is the true concept of the expression "personal use".It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth-Tax Act.The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna ( supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in thatare, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appellant and as such could not be excluded while computing the gains. | 0 | 2,224 | 457 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
### Input:
him;"The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant. A close scrutiny of the context an; which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessses person. In other words, , an intimate connection between the effects and the person of the assessee must be shown to exist to render them "personal effects".The enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of "personal effects" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.The meaning assigned to the expression "personal effects" m various dictionaries also lends support to this view. In the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning: -"Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc. for intimate use by an individual".In Blacks Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning:"Personal effects. Articles associated with person, as property having more or less intimate relation to person of possessor;"In Cyclopedic Law Dictionary, Third Edition, at page 832, the expression "personal effects without qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.In Words and Phrases (Permanent Edition), Volume 32 at page 277 it is stated that the words "personal effects" when used without qualification, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person. At another place at the same page, it is stated that the words "personal effects" are used to designate articles associated with person, as property having more or less intimate relation to person of possessor or such tangible property as attends the person.6. Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver bars or bullion can by no stretch of imagination be deemed to be "effects" meant for personal use. Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of Sharadh Pakh for Maha Lakshmi Puja and for worship on the occasion of Diwali festival can not also be designated as effects meant for personal use. They may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use. As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the asses see, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.The language of section 5(1)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression "personal effects" as given in section 2(4A) (ii) of the Act is also helpful in cons truing the latter provision. That provision runs as follows:-"5. (1) Subject to the provisions of sub-section (1-A), wealth-tax shall not be payable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee............................(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee but not including jewellery;"7. In S. Poddar v. The Commissioner of Wealth Tax, Bombay City-II(I.L.R. [1965] Bom.1062.) where the assessee at the time of his appointment in the year 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray, , two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959-60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use. It meant normally, commonly, or ordinarily intended for personal or household use. This in our opinion is the true concept of the expression "personal use".It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth-Tax Act.The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna ( supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.8. We are, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appellant and as such could not be excluded while computing the gains.9.
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### Explanation:
In S. Poddar v. The Commissioner of Wealth Tax, Bombay City-II(I.L.R. [1965] Bom.1062.) where the assessee at the time of his appointment in the year 1945 as a Justice of the Peace was presented with two gold caskets, a gold tray, , two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with whose business he was connected and he kept these articles in a glass show case for display in his drawing room and in assessment year 1959-60 claimed exemption in respect of these articles under the above quoted provision i.e. under section 5(1)(viii) ofthe Wealth Tax Act, 1957, it was held that merely because the gold caskets were kept in the show case did not make them part of the furniture and the rest of the articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not contemplated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression "intended for personal or household use" did not mean capable of being intended for personal or household use. It meant normally, commonly, or ordinarily intended for personal or household use. This in our opinion is the true concept of the expression "personal use".It is also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of the Wealth-Tax Act.The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna ( supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in thatare, therefore" of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appellant and as such could not be excluded while computing the gains.
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Mst. Kharbuja Kuer Vs. Jangbahadur Rai | question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were not inconsistent with partition. The he discussed the oral evidence. He had considered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of the defendants. He also noticed pieces of circumstantial evidence. After considering the entire evidence, oral, documentary and circumstantial, he came to the following conclusion :"Although the oral evidence on both the sides on the point of jointness and separation is not satisfactory but from the circumstances adduced from the facts of the case I am convinced that Rameshwar died in states of separation from Jangbahadur."13. It cannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was not as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is correct or not, is certainly a finding of fact an it cannot be said that it is not based on evidence.14. Now coming to the appellate court, the learned Subordinate Judge reviewed the entire evidence, oral, documentary, circumstantial, and arrived at the following findings :"In view of the facts and the circumstances narrated above, while the probabilities are that there was a disruption in the joint family of Rameshwar and Jangbahadur as alleged by the plaintiff the defendants have failed to prove beyond all doubts that the family continued to be joint at the time of Rameshwars death, or that they came in exclusive possession of the properties left behind by him. Judging Ex. C, in this light, we find that if the fact of separation between Rameshwar and Jangbahadur as alleged by the plaintiff, be accepted to be true, as has been shown above, then the fraud in the execution of this document is patent, and not discussion is required to declare it as a forged and fraudulent document."15. It is true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : (1) The plaintiff and her mother-in-law were pardanashin and illiterate women - one of them was old and the other was middle-aged. (2) They has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote the names on the document was not proved to be the brother of the plaintiff. (4) The document was in the custody of the defendant. (5) The plaintiff and her mother-in-law were in enjoyment of the property as they were enjoying it even before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. (7) The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And (8) the plaintiff gave acceptable evidence in support of her case. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal.16. | 1[ds]It is settled law that the High Court has no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact. In the instant case the learned Munsif and, on appeal, the learned Subordinate Judge found concurrently that the two widows put their thumb marks without understanding the true import of the document. Imam, J., in second appeal reversed the said findings on the ground that they were vitiated by an erroneous view of the law in the matter of burden of proof. The judgment, if we may say so with respect, consists of propositions which appear to be contradictory. The learned Judge, after reviewing the case law on the subject, concludes his discussing by hooding that it was the duty of the plaintiff to prove that there was fraud committed and that, as that had not been established, the question whether the document was read over and explained to the plaintiff, in his opinion, in the circumstances, did not arise. This proposition, in our view, is clearly wrong and is contrary to the principles laid down by the Privy Council in a series of a decisions. In Indian pardhanashin ladies have been given a special protection in view of the social conditions of the times; they are presumed to have an imperfect knowledge of the world, as, by the pardah system, they are practically excluded from social intercourse and communion with the outsideis, therefore, manifest that the rule evolved for the protection of pardhanashin ladies shall not be confused with other doctrines, such as fraud, duress and actual undue influence, which apply to all persons whether they be pardhanashin ladies oraffirming the principle that the burden is upon the person who seeks to sustain a document executed by a pardanashin lady that the executed it with a true understanding mind, it has been held that the proof of the fact that it has been explained to her is not the only mode of discharging the said burden, but the fact whether she voluntarily executed the document or not could be ascertained from other evidence and circumstances in the case. The same view was again reiterated by the Judicial Committee, through Sir George Rankin, in Jagadish Chandra v. Debnath (A.I.R. 1940 P.C. 134.). Further citation is unnecessary. The legal position has been very well settled. Shortly it may be stated thus : The burden of proof shall always rest upon the person who seeks to sustain a transaction entered into with a pardanashin lady to establish that the said document was executed by her after clearly understanding the nature of the transaction. It should be established that it was not only her physical act but also her mental act. The burden can be discharged not only by providing that the document was explained to her and that she understood it, but also by other evidence, direct and circumstantial.If that be the law, a perusal of the judgments of the three courts demonstrates that while the learned Munsif and the learned Subordinate Judge approached the case from a correct perspective, the High Court misled itself by a wrong approach. The relevant issue we have already extracted shows that the burden was thrown upon the defendant. The first two courts approached the evidence from that standpoint and gave a concurrent finding that it had not been established that the plaintiff executed the document after understanding the nature of the transaction. Apart from the burden of proof, also on the facts found they came to the same conclusion. The High Court, having wrongly held that the approach of the two courts was not correct and having wrongly thrown the burden upon the plaintiff considered the evidence afresh and set aside that finding. As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the saidis true that before the learned Munsif the Advocates appearing for the parties contended that it was not necessary to give any finding on issue No. 3 and that the suit could be disposed of without giving any finding thereon. But the learned Munsif rightly did not accept the said suggestion and held that the issue had been framed on the pleadings and that all the relevant evidence had been adduced and that it was only proper to give a finding thereon. The learned Subordinate Judge pointed out that the main point for consideration was not the matter of jointness or separation, but only the validity or genuineness of the deed itself, and that "the question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were not inconsistent with partition. The he discussed the oral evidence. He had considered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of thecannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was not as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is correct or not, is certainly a finding of fact an it cannot be said that it is not based onis true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : (1) The plaintiff and her mother-in-law were pardanashin and illiterate women - one of them was old and the other was middle-aged. (2) They has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote the names on the document was not proved to be the brother of the plaintiff. (4) The document was in the custody of the defendant. (5) The plaintiff and her mother-in-law were in enjoyment of the property as they were enjoying it even before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. (7) The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And (8) the plaintiff gave acceptable evidence in support of her case. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal. | 1 | 3,907 | 1,691 | ### 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:
question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were not inconsistent with partition. The he discussed the oral evidence. He had considered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of the defendants. He also noticed pieces of circumstantial evidence. After considering the entire evidence, oral, documentary and circumstantial, he came to the following conclusion :"Although the oral evidence on both the sides on the point of jointness and separation is not satisfactory but from the circumstances adduced from the facts of the case I am convinced that Rameshwar died in states of separation from Jangbahadur."13. It cannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was not as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is correct or not, is certainly a finding of fact an it cannot be said that it is not based on evidence.14. Now coming to the appellate court, the learned Subordinate Judge reviewed the entire evidence, oral, documentary, circumstantial, and arrived at the following findings :"In view of the facts and the circumstances narrated above, while the probabilities are that there was a disruption in the joint family of Rameshwar and Jangbahadur as alleged by the plaintiff the defendants have failed to prove beyond all doubts that the family continued to be joint at the time of Rameshwars death, or that they came in exclusive possession of the properties left behind by him. Judging Ex. C, in this light, we find that if the fact of separation between Rameshwar and Jangbahadur as alleged by the plaintiff, be accepted to be true, as has been shown above, then the fraud in the execution of this document is patent, and not discussion is required to declare it as a forged and fraudulent document."15. It is true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : (1) The plaintiff and her mother-in-law were pardanashin and illiterate women - one of them was old and the other was middle-aged. (2) They has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote the names on the document was not proved to be the brother of the plaintiff. (4) The document was in the custody of the defendant. (5) The plaintiff and her mother-in-law were in enjoyment of the property as they were enjoying it even before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. (7) The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And (8) the plaintiff gave acceptable evidence in support of her case. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal.16.
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### Explanation:
and gave a concurrent finding that it had not been established that the plaintiff executed the document after understanding the nature of the transaction. Apart from the burden of proof, also on the facts found they came to the same conclusion. The High Court, having wrongly held that the approach of the two courts was not correct and having wrongly thrown the burden upon the plaintiff considered the evidence afresh and set aside that finding. As the two courts approached the evidence from a correct perspective and gave a concurrent finding of fact, the High Court had no jurisdiction to interfere with the saidis true that before the learned Munsif the Advocates appearing for the parties contended that it was not necessary to give any finding on issue No. 3 and that the suit could be disposed of without giving any finding thereon. But the learned Munsif rightly did not accept the said suggestion and held that the issue had been framed on the pleadings and that all the relevant evidence had been adduced and that it was only proper to give a finding thereon. The learned Subordinate Judge pointed out that the main point for consideration was not the matter of jointness or separation, but only the validity or genuineness of the deed itself, and that "the question of separation or jointness thus only becomes a link in the chain to judge the validity or otherwise of the document, Ex. C". This statement of the learned Subordinate Judge is unobjectionable. The question of partition in the family was a circumstance which would have an important bearing on the question of probability of the widows executing a document admitting that there was no partition in the family and that they had no absolute interest in the said property.Now coming to the evidence, we cannot accept the argument of learned counsel for the respondents that there was no evidence in the case to rebut the presumption of Hindu law that a family is joint. The learned Munsif said that there was no documentary evidence on behalf of the plaintiff to prove separation; by that statement he meant that the partition was not effected by a written document, for the next sentence made it clear when he said that it was due to the fact of alleged oral partition. Then he considered the documents filed by the defendants in great detail and came to the conclusion that the said documents were not inconsistent with partition. The he discussed the oral evidence. He had considered the evidence of five witnesses examined on behalf of the plaintiff and of seven witnesses examined on behalf of thecannot be said from the said finding that he rejected the oral evidence. It may be that the oral evidence adduced on behalf of the plaintiff was not as satisfactory as it should be, but he preferred that evidence, which supported partition, in view of the circumstances found on the evidence. The finding, whether it is correct or not, is certainly a finding of fact an it cannot be said that it is not based onis true the finding could have been more explicit, but that does not detract from its finality. In the first part of the finding, the learned Subordinate Judge says in effect that, having regard to the facts and circumstances he had discussed earlier, the burden shifted to the first defendant, who did not adduce acceptable evidence to dislodge the circumstances against jointness. But in the second part of the finding he makes it clear that he had found that there was partition in the family. The finding is again a finding of fact. That a part, the High Court did not in any way question the correctness of the finding of the learned Munsif and the learned Subordinate Judge, but only ignored it on the ground that it was not the duty of the lower appellate court to deal with that question at all. We cannot appreciate the observations of the learned Judge of the High Court, for, in our view, that finding, as the learned Munsif pointed out, arose on the pleadings and, as the lower appellate court pointed out, had a direct impact on the main question to be decided in the case. We, therefore, hold that he said finding was binding upon the High Court.Even if that finding was ignored, there was sufficient material to sustain the finding of the first two courts. Both the courts fond that the first defendant, on whom the burden lay, not only did not establish that it was executed by the plaintiff with the knowledge of its contents, but that even apart from the burden of proof, that they also found that the plaintiff and her mother-in-law put their thumb marks on the document under the impression that it was a power of attorney. The finding is one of fact and was based upon the following relevant facts : (1) The plaintiff and her mother-in-law were pardanashin and illiterate women - one of them was old and the other was middle-aged. (2) They has full confidence in he first defendant. (3) Babu Ramnath Singh, who wrote the names on the document was not proved to be the brother of the plaintiff. (4) The document was in the custody of the defendant. (5) The plaintiff and her mother-in-law were in enjoyment of the property as they were enjoying it even before the execution of the document. (6) The defendant had not examined either Babu Ramnath Singh or other important witnesses who could have proved the fact that the plaintiff and her mother-in-law had the knowledge of the nature of the document. (7) The defendant managed to get this document by fraud to facilitate mutation of the property in his name. And (8) the plaintiff gave acceptable evidence in support of her case. The finding of the both the courts is supported by evidence, and there is no permissible ground for interference with it in second appeal.
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Bharat Petroleum Corpn.Ltd Vs. P. Kesavan | University vs. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 ). Sub-section (2) of Section 5 of the Act is imperative in character and must be construed as such. 15. The maxim generalia specialibus on derogant meaning thereby that general things do not derogate special things shall, thus, apply in the instant case and in that view of the matter ad admittedly the appellant herein has expressed its desire to renew the lease, sub-section (2) of Section 5 read with sub-section (3) of Section 7 thereof shall be attracted. (See Indian Handicrafts Emporium and others vs. Union of India and others (2003) 7 SCC 589 ), D.R. Yadav and Another vs. R.K. Singh and another (2003) 7 SCC 110 ), Union of India and others vs. B.N. Jha, (2003) 4 SCC 531 ), Ashok Leyland Ltd. vs. State of Tamil Nadu and another (2004) (1) SCALE 224 ) and M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board (Civil Appeal No. 2510 of 2002) disposed of on 18.3.2004. 16. Furthermore, Section 11 of the Act provides for a non-obstante clause. An overriding effect, therefore, has been given thereby over all other laws for the time being in force. 17. In Aswini Kumar Ghose and Another vs. Arabinda Bose and Another (AIR 1952 SC 369 ), it was observed: ".. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for, even apart from such clause, a later law abrogate earlier, laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broomes Legal Maxims, Edn. 10 p. 347). Here, s. 2 entitles every Advocate of the Supreme Court as of right to practice in any High Court in India." 18. We, therefore, are of the opinion that the legislative scheme contained in the said Act leads to only one conclusion that if Government company expresses its desire to renew the lease, the same would stand renewed on the same terms and conditions. 19. Section 5(2) and Section 7(3) of the Act are required to be given its purposive meaning, having regard to the object and purport the statute seeks to achieve. The Central Government by reason of the provisions of the said Act acquired running business undertakings dealing in distribution and marketing of petroleum products. The leases or tenancy for outlets are, therefore, continued to be kept with the Central Government or the Government company, as the case may be, so that no let or hindrance is placed in the matter of distribution of the products from established retails outlets, unless alternate arrangements are made. Having regard to the object of the Act, as noticed hereinbefore, it is difficult to agree with the submission of the learned counsel for the respondents to the effect that the expression mere desire by the Central Government or the appellant was not enough and they were required to show something more, as for example existence of need for renewal of the lease. The central Government of the Government company is a state within the meaning of Article 12 of the Constitution of India. There are required to act fairly. It is not the case of the respondents herein that desire to get the lease renewed was actuated by any malice or ill-will or the same was otherwise unfair and unreasonable. In that view of the matter, it is difficult to construe Section 5(32) of the Act as not laying down a law not contemplating automatic renewal of the lease.20. The provisions of the Transfer of Property Act have no application in a case where a transfer of property takes place by operation of law. 21. In Harishchandra Hegde vs. State of Karnataka and others 2004(1) SCALE 48, it was held: "By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non-obstante clause. The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Property Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail.Section 51 of the Transfer of Property Act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special statute. Unless there exists a provision therein, an order passed there under cannot be supplanted or supplemented with reference to another statute." CONCLUSION: 22. For the reasons aforementioned, the impugned judgments cannot be sustained and are set aside accordingly.23. Before parting with this case, we may, however, place on records the statements made by Mr. M.A. Krishna Moorthy to the effect that the appellant is not interested in having the second renewal and the possession of leasehold shall be handed over the respondent herein on the expiry of the tenure of the renewed lease i.e. tenure of the lease. With a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct that the appellant herein shall pay a sum of equivalent to 10 times of the original rental with effect from the date on which the original deed of lease expired. This order shall, however, not be treated as a precedent. 24. | 1[ds]18. We, therefore, are of the opinion that the legislative scheme contained in the said Act leads to only one conclusion that if Government company expresses its desire to renew the lease, the same would stand renewed on the same terms and5(2) and Section 7(3) of the Act are required to be given its purposive meaning, having regard to the object and purport the statute seeks to achieve. The Central Government by reason of the provisions of the said Act acquired running business undertakings dealing in distribution and marketing of petroleum products. The leases or tenancy for outlets are, therefore, continued to be kept with the Central Government or the Government company, as the case may be, so that no let or hindrance is placed in the matter of distribution of the products from established retails outlets, unless alternate arrangements are made. Having regard to the object of the Act, as noticed hereinbefore, it is difficult to agree with the submission of the learned counsel for the respondents to the effect that the expression mere desire by the Central Government or the appellant was not enough and they were required to show something more, as for example existence of need for renewal of the lease. The central Government of the Government company is a state within the meaning of Article 12 of the Constitution of India. There are required to act fairly. It is not the case of the respondents herein that desire to get the lease renewed was actuated by any malice or ill-will or the same was otherwise unfair and unreasonable. In that view of the matter, it is difficult to construe Section 5(32) of the Act as not laying down a law not contemplating automatic renewal of the lease.20. The provisions of the Transfer of Property Act have no application in a case where a transfer of property takes place by operation ofthe reasons aforementioned, the impugned judgments cannot be sustained and are set aside accordingly.23. Before parting with this case, we may, however, place on records the statements made by Mr. M.A. Krishna Moorthy to the effect that the appellant is not interested in having the second renewal and the possession of leasehold shall be handed over the respondent herein on the expiry of the tenure of the renewed lease i.e. tenure of the lease. With a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct that the appellant herein shall pay a sum of equivalent to 10 times of the original rental with effect from the date on which the original deed of lease expired. This order shall, however, not be treated as a precedent. | 1 | 3,029 | 504 | ### 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:
University vs. Palitana Sugar Mill (P) Ltd. and others, (2003) 2 SCC 111 ). Sub-section (2) of Section 5 of the Act is imperative in character and must be construed as such. 15. The maxim generalia specialibus on derogant meaning thereby that general things do not derogate special things shall, thus, apply in the instant case and in that view of the matter ad admittedly the appellant herein has expressed its desire to renew the lease, sub-section (2) of Section 5 read with sub-section (3) of Section 7 thereof shall be attracted. (See Indian Handicrafts Emporium and others vs. Union of India and others (2003) 7 SCC 589 ), D.R. Yadav and Another vs. R.K. Singh and another (2003) 7 SCC 110 ), Union of India and others vs. B.N. Jha, (2003) 4 SCC 531 ), Ashok Leyland Ltd. vs. State of Tamil Nadu and another (2004) (1) SCALE 224 ) and M.P. Vidyut Karamchari Sangh vs. M.P. Electricity Board (Civil Appeal No. 2510 of 2002) disposed of on 18.3.2004. 16. Furthermore, Section 11 of the Act provides for a non-obstante clause. An overriding effect, therefore, has been given thereby over all other laws for the time being in force. 17. In Aswini Kumar Ghose and Another vs. Arabinda Bose and Another (AIR 1952 SC 369 ), it was observed: ".. The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously, for, even apart from such clause, a later law abrogate earlier, laws clearly inconsistent with it. Posteriores leges priores contrarias abrogant (Broomes Legal Maxims, Edn. 10 p. 347). Here, s. 2 entitles every Advocate of the Supreme Court as of right to practice in any High Court in India." 18. We, therefore, are of the opinion that the legislative scheme contained in the said Act leads to only one conclusion that if Government company expresses its desire to renew the lease, the same would stand renewed on the same terms and conditions. 19. Section 5(2) and Section 7(3) of the Act are required to be given its purposive meaning, having regard to the object and purport the statute seeks to achieve. The Central Government by reason of the provisions of the said Act acquired running business undertakings dealing in distribution and marketing of petroleum products. The leases or tenancy for outlets are, therefore, continued to be kept with the Central Government or the Government company, as the case may be, so that no let or hindrance is placed in the matter of distribution of the products from established retails outlets, unless alternate arrangements are made. Having regard to the object of the Act, as noticed hereinbefore, it is difficult to agree with the submission of the learned counsel for the respondents to the effect that the expression mere desire by the Central Government or the appellant was not enough and they were required to show something more, as for example existence of need for renewal of the lease. The central Government of the Government company is a state within the meaning of Article 12 of the Constitution of India. There are required to act fairly. It is not the case of the respondents herein that desire to get the lease renewed was actuated by any malice or ill-will or the same was otherwise unfair and unreasonable. In that view of the matter, it is difficult to construe Section 5(32) of the Act as not laying down a law not contemplating automatic renewal of the lease.20. The provisions of the Transfer of Property Act have no application in a case where a transfer of property takes place by operation of law. 21. In Harishchandra Hegde vs. State of Karnataka and others 2004(1) SCALE 48, it was held: "By reason of an order passed under Section 4 of the Act, the lands are directed to be restored in the event the illegalities specified therein are discovered. The consequences contained in Section 5 of the Act applies automatically in the event an order under Section 4 of the Act is passed. Section 4 of the Act contains a non-obstante clause. The said provision would, thus, apply notwithstanding anything contained in any agreement or any other Act for the time being in force. The Act is a special Act whereas the Transfer of Property Act is a general Act and in that view of the matter also Section 51 of the Transfer of Property Act will have no application and the consequences contained in Section 5 would prevail.Section 51 of the Transfer of Property Act applies to inter vivos transfers. It, as noticed hereinbefore, does not apply to a transfer made by operation of law. If a judicial order is passed restoring the land back to a member of Scheduled Tribes in terms of the purport and object of the statute, the provisions of the Transfer of Property Act cannot be applied in such a case. The matter is governed by a special statute. Unless there exists a provision therein, an order passed there under cannot be supplanted or supplemented with reference to another statute." CONCLUSION: 22. For the reasons aforementioned, the impugned judgments cannot be sustained and are set aside accordingly.23. Before parting with this case, we may, however, place on records the statements made by Mr. M.A. Krishna Moorthy to the effect that the appellant is not interested in having the second renewal and the possession of leasehold shall be handed over the respondent herein on the expiry of the tenure of the renewed lease i.e. tenure of the lease. With a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct that the appellant herein shall pay a sum of equivalent to 10 times of the original rental with effect from the date on which the original deed of lease expired. This order shall, however, not be treated as a precedent. 24.
### Response:
1
### Explanation:
18. We, therefore, are of the opinion that the legislative scheme contained in the said Act leads to only one conclusion that if Government company expresses its desire to renew the lease, the same would stand renewed on the same terms and5(2) and Section 7(3) of the Act are required to be given its purposive meaning, having regard to the object and purport the statute seeks to achieve. The Central Government by reason of the provisions of the said Act acquired running business undertakings dealing in distribution and marketing of petroleum products. The leases or tenancy for outlets are, therefore, continued to be kept with the Central Government or the Government company, as the case may be, so that no let or hindrance is placed in the matter of distribution of the products from established retails outlets, unless alternate arrangements are made. Having regard to the object of the Act, as noticed hereinbefore, it is difficult to agree with the submission of the learned counsel for the respondents to the effect that the expression mere desire by the Central Government or the appellant was not enough and they were required to show something more, as for example existence of need for renewal of the lease. The central Government of the Government company is a state within the meaning of Article 12 of the Constitution of India. There are required to act fairly. It is not the case of the respondents herein that desire to get the lease renewed was actuated by any malice or ill-will or the same was otherwise unfair and unreasonable. In that view of the matter, it is difficult to construe Section 5(32) of the Act as not laying down a law not contemplating automatic renewal of the lease.20. The provisions of the Transfer of Property Act have no application in a case where a transfer of property takes place by operation ofthe reasons aforementioned, the impugned judgments cannot be sustained and are set aside accordingly.23. Before parting with this case, we may, however, place on records the statements made by Mr. M.A. Krishna Moorthy to the effect that the appellant is not interested in having the second renewal and the possession of leasehold shall be handed over the respondent herein on the expiry of the tenure of the renewed lease i.e. tenure of the lease. With a view to do complete justice between the parties, in exercise of our jurisdiction under Article 142 of the Constitution of India, we direct that the appellant herein shall pay a sum of equivalent to 10 times of the original rental with effect from the date on which the original deed of lease expired. This order shall, however, not be treated as a precedent.
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