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Aher Rama Gova and Others Vs. State of Gujarat | Fazal Ali, J. This appeal by special leave is directed against a judgment of the Gujarat High Court convicting the three appellants Uka Gova, Rama Gova and Rama Sidi under Section 326/149 to five years rigorous imprisonment.2. As many as eleven accused were tried by the trial Court but all of them were acquitted on the finding that the prosecution case was not proved. The State thereupon filed an appeal to the High Court which after reviewing the evidence came to the conclusion that the case against the appellants was foolproof. The central evidence against the accused consists of the testimony of the eyewitness PW 3 Bai Mini, widow of the deceased Kane Naran. This evidence is corroborated by three dying declarations said to have been made by the deceased. One of the dying declarations which is oral is contained in the FIR itself and the other two were made later on : one to the Magistrate and another to a police officer. We have gone through the judgment of the High Court which has made a very cautious approach to this case and has held that in the circumstances of this case the High Court would rely on the evidence of PW 3 only if it is corroborated by some other evidence. The High Court relied on Ex. 77 which was recorded by a Taluka Magistrate. It is true that the original dying declaration was not produced before the Court but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable where the Head Constable had said that he had made a copy of the same and given it back to the Magistrate. At any rate, it was clearly proved that the original dying declaration was not available. In these circumstances the prosecution was entitled to give secondly evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original and testified that the copy was a correct one. Appearing in support of the appeal Mr. Mulla vehemently criticised the dying declaration on several grounds but the High Court has dealt with these grounds and after hearing Mr. Mulla, we are satisfied that the finding of the High Court regarding the veracity of the dying declaration is correct and does not call for any interference. We are also satisfied that the view taken by the High Court in convicting the appellant is fully borne out by the evidence on the record and does not need to be set aside by us.3. Lastly, it was urged by Mr. Mulla that the ends of justice do not require that the appellants should be sent back to jail for an occurrence which has taken place ten years ago and after they had been on bail for a pretty long time. Having regard to the peculiar circumstances of this case, we feel that it will not be conducive in the interests of justice to send the appellants back to jail and the ends of justice would be fully met if PW 3, Bai Mini the widow of Kane Naran is sufficiently compensated. For these reasons, therefore, we would, upholding the conviction of the appellants, reduce the sentence to the period already served. In lieu of the sentence remitted we shall impose a fine of Rs. 3000 on each of the appellants. In default one years rigorous imprisonment.4. Out of the fine, if realised, the entire amount should be paid to PW 3, Bai Mini. Six months time is allowed to the accused to pay the fine. The appellants will be discharged from the bail bonds after the fine has been paid. | 0[ds]We are also satisfied that the view taken by the High Court in convicting the appellant is fully borne out by the evidence on the record and does not need to be set aside byregard to the peculiar circumstances of this case, we feel that it will not be conducive in the interests of justice to send the appellants back to jail and the ends of justice would be fully met if PW 3, Bai Mini the widow of Kane Naran is sufficiently compensated. For these reasons, therefore, we would, upholding the conviction of the appellants, reduce the sentence to the period already served. In lieu of the sentence remitted we shall impose a fine of Rs. 3000 on each of the appellants. In default one years rigorous imprisonment.4. Out of the fine, if realised, the entire amount should be paid to PW 3, Bai Mini. Six months time is allowed to the accused to pay the fine. The appellants will be discharged from the bail bonds after the fine has been paid. | 0 | 673 | 194 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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Fazal Ali, J. This appeal by special leave is directed against a judgment of the Gujarat High Court convicting the three appellants Uka Gova, Rama Gova and Rama Sidi under Section 326/149 to five years rigorous imprisonment.2. As many as eleven accused were tried by the trial Court but all of them were acquitted on the finding that the prosecution case was not proved. The State thereupon filed an appeal to the High Court which after reviewing the evidence came to the conclusion that the case against the appellants was foolproof. The central evidence against the accused consists of the testimony of the eyewitness PW 3 Bai Mini, widow of the deceased Kane Naran. This evidence is corroborated by three dying declarations said to have been made by the deceased. One of the dying declarations which is oral is contained in the FIR itself and the other two were made later on : one to the Magistrate and another to a police officer. We have gone through the judgment of the High Court which has made a very cautious approach to this case and has held that in the circumstances of this case the High Court would rely on the evidence of PW 3 only if it is corroborated by some other evidence. The High Court relied on Ex. 77 which was recorded by a Taluka Magistrate. It is true that the original dying declaration was not produced before the Court but from the evidence, it is clear that the original was lost and was not available. The Magistrate himself deposed on oath that he had given the original dying declaration to the Head Constable where the Head Constable had said that he had made a copy of the same and given it back to the Magistrate. At any rate, it was clearly proved that the original dying declaration was not available. In these circumstances the prosecution was entitled to give secondly evidence which consisted of the statement of the Magistrate as also of the Head Constable who had made a copy from the original and testified that the copy was a correct one. Appearing in support of the appeal Mr. Mulla vehemently criticised the dying declaration on several grounds but the High Court has dealt with these grounds and after hearing Mr. Mulla, we are satisfied that the finding of the High Court regarding the veracity of the dying declaration is correct and does not call for any interference. We are also satisfied that the view taken by the High Court in convicting the appellant is fully borne out by the evidence on the record and does not need to be set aside by us.3. Lastly, it was urged by Mr. Mulla that the ends of justice do not require that the appellants should be sent back to jail for an occurrence which has taken place ten years ago and after they had been on bail for a pretty long time. Having regard to the peculiar circumstances of this case, we feel that it will not be conducive in the interests of justice to send the appellants back to jail and the ends of justice would be fully met if PW 3, Bai Mini the widow of Kane Naran is sufficiently compensated. For these reasons, therefore, we would, upholding the conviction of the appellants, reduce the sentence to the period already served. In lieu of the sentence remitted we shall impose a fine of Rs. 3000 on each of the appellants. In default one years rigorous imprisonment.4. Out of the fine, if realised, the entire amount should be paid to PW 3, Bai Mini. Six months time is allowed to the accused to pay the fine. The appellants will be discharged from the bail bonds after the fine has been paid.
### Response:
0
### Explanation:
We are also satisfied that the view taken by the High Court in convicting the appellant is fully borne out by the evidence on the record and does not need to be set aside byregard to the peculiar circumstances of this case, we feel that it will not be conducive in the interests of justice to send the appellants back to jail and the ends of justice would be fully met if PW 3, Bai Mini the widow of Kane Naran is sufficiently compensated. For these reasons, therefore, we would, upholding the conviction of the appellants, reduce the sentence to the period already served. In lieu of the sentence remitted we shall impose a fine of Rs. 3000 on each of the appellants. In default one years rigorous imprisonment.4. Out of the fine, if realised, the entire amount should be paid to PW 3, Bai Mini. Six months time is allowed to the accused to pay the fine. The appellants will be discharged from the bail bonds after the fine has been paid.
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Lekha Yadav Vs. State of Bihar | whether the High Court has kept in view the guidelines laid down by the Privy Council in Sheo Swarups case (AIR 1934 PC 227 ) and later in numerous cases heard and disposed of by this Court. Those guidelines are well known and have already been adverted to.10. Turning to the case in hand, it is obvious that the trial court had committed several errors in appraising the evidence led in the case. It not only ignored but appears even to have misread part of the evidence in certain respects and as a result thereof arrived at conclusions which on a proper appraisal and reading of the evidence would be clearly erroneous and unsustainable. The trial courts approach in evaluating the evidence appears to us to be unfair and irrational. For example, it has condemned the prosecution by imputing to it attempt to falsely implicate Suresh accused. This is how the trial court has dealt with this matter."One of the important circumstances is that one Suresh had accompanied the dead body to the police station. Accused Suresh claims that it was he who had gone with the dead body and at the police station P.W. 12 Sarjug Missir asked him to go away and he returned home. For the first time it was P.W. 9 who introduced the presence of one Suresh at the place of occurrence and she said that he was her sisters son and in paragraph 12 she denied that it was accused Suresh who had accompanied the dead body of her son. P.W. 3 has stated in paragraph 6 that in the village except accused Suresh there is no other of that name and he had stated before the police that Suresh had carried the dead body of Ramautar to Fatwah P. W. 15 has stated in paragraph 8 that he does not know any Suresh except the accused Suresh. According to P.W. 12 his cousin Suresh is aged about nine or ten and it was he who had gone to the police station along with them But P.W. 19 the investigating officer does not say that he examined any Suresh at the police station or any where thereafter. If actually there had been another Suresh, the prosecution could not have failed to produce him just to disprove the claim of accused Suresh that he had gone with the dead body to Fatwah. Having failed to do so and it being admitted by P. Ws. 3 and is that they do not know of any other Suresh, the only natural inference would be that it is this accused Suresh who had accompanied the dead body to Fatuwa and his statement under Section 342, Cr.P. C. that it was at the Thana that P.W. 12 asked him to return home explains as to why he was not examined by the Police. "Now P.W 3, Parmeshwar Gope was tendered for cross-examination. In his cross-examination on behalf of the accused persons it was extracted that on that day no man named Suresh carried the injured person to hospital and that there was no other Suresh in the village except accused Suresh. It was further extracted that the witness had not made a statement before the police that Suresh and others carried Ramautar to Fatwah and that when Ramautar was lifted and was being carried, there was none else besides the witnesses. This statement was recorded on September 21, 1966. Gaya Devi, P.W. 9 examined on September 26, 1966 denied in cross-examination that accused Suresh had gone to the hospital with her son and that it was not a fact that her sisters son Suresh had not come there. She added that her sisters son Suresh had actually come to her place one day before. P.W. 12, Sarjug Mishra in cross-examination stated that in addition to the witnesses his Mausera brother Suresh had come there after the occurrence. This statement was recorded on September 27, 1966. Jagdish Yadav, P. W. 15 in his cross-examination stated that accused Suresh was not his brother by village relation and that he did not know any other Suresh except this one. Suresh accused was examined in the court of Committing Magistrate on March 4, 1966. In his examination as an accused in that court he gave his age to be 14 years and merely denied the prosecution allegations as false, adding that he had not committed the offence. He did not say anything else, in the court of the Third Additional Sessions Judge, he was examined as an accused on October 4, 1966 when he gave his age as 18 years and after denying all the allegations, when he was asked generally if he had anything more to say, he replied:"People were carrying the dead body of Ramautar in the night by the west of my house. I went there and accompanied them up to P. S. Sarjug sent me back from there."When asked if he would cite (defence) witness, he replied in the negative. Now on the basis of this material, in our opinion, it is somewhat surprising for the trial court to have observed that the prosecution could have produced Suresh, the cousin of P. W. 12, to disprove the claim of the accused. This claim was not made by the accused Suresh in the committing court. It was only made in clear teens at the trial after the prosecution evidence had concluded. The trial court was, therefore, not justified in concluding on this basis that there was any attempt on the part of the prosecution to falsely implicate innocent persons. It is inconceivable that Suresh accused could have dared, as claimed, in the circumstances of this case, to accompany the dead body upto the police station. Bearing in mind the feelings of hostility between the two groups, the presence of Suresh accused amongst those carrying the dead body to the hospital seems to be a highly unrealistic suggestion which should have been rejected by the trial court without any serious notice. | 0[ds]8. The legal position is so well settled that we consider it unnecessary to deal with it at great length. It has been reiterated by this Court in innumerable cases, a large number of which are reported in the law reports. To put in a nutshell, once again, the High Court has full power on appeal from acquittal to appraise the evidence for itself just as it is empowered to do on appeal against conviction. The statute, as has repeatedly been said, creates no distinction between the two kinds of appeals. All that the High Court is expected to do in appeals against orders of acquittal, is, that it should bear in mind that there is an initial presumption in favour of innocence of an accused person and that the trial court having acquitted him, this initial presumption should be considered to have been further strengthened to some extent, but certainly not weakened, as a result of the trial courts conclusion. The correctness or otherwise of the conclusions of the trial court, it is true, is the subject of the appeal and is, therefore, open to examination by the High Court. But while appraising the evidence, the High Court should not ignore the importance of the opinion of the trial court which has to be dislodged before reversing the order under appeal. This, in our opinion, is the broad approach required of the High Court when hearing appeals against orders of acquittal.9. This Court is not, as a general rule, expected to examine the entire evidence for itself under Art. 136 of the Constitution in cases where the High Court has, on appeal, reversed the order of acquittal and convicted the accused persons. This Court only examines so much of the evidence as is necessary for the purpose of determining whether the High Court has kept in view the guidelines laid down by the Privy Council in Sheo Swarups case (AIR 1934 PC 227 ) and later in numerous cases heard and disposed of by this Court. Those guidelines are well known and have already been adverted to.10. Turning to the case in hand, it is obvious that the trial court had committed several errors in appraising the evidence led in the case. It not only ignored but appears even to have misread part of the evidence in certain respects and as a result thereof arrived at conclusions which on a proper appraisal and reading of the evidence would be clearly erroneous and unsustainable. The trial courts approach in evaluating the evidence appears to us to be unfair and irrational. For example, it has condemned the prosecution by imputing to it attempt to falsely implicate SureshP.W 3, Parmeshwar Gope was tendered forion on behalf of the accused persons it was extracted that on that day no man named Suresh carried the injured person to hospital and that there was no other Suresh in the village except accused Suresh. It was further extracted that the witness had not made a statement before the police that Suresh and others carried Ramautar to Fatwah and that when Ramautar was lifted and was being carried, there was none else besides the witnesses. This statement was recorded on September 21, 1966. Gaya Devi, P.W. 9 examined on September 26, 1966 denied inthat accused Suresh had gone to the hospital with her son and that it was not a fact that her sisters son Suresh had not come there. She added that her sisters son Suresh had actually come to her place one day before. P.W. 12, Sarjug Mishra instated that in addition to the witnesses his Mausera brother Suresh had come there after the occurrence. This statement was recorded on September 27, 1966. Jagdish Yadav, P. W. 15 in hisstated that accused Suresh was not his brother by village relation and that he did not know any other Suresh except this one. Suresh accused was examined in the court of Committing Magistrate on March 4, 1966. In his examination as an accused in that court he gave his age to be 14 years and merely denied the prosecution allegations as false, adding that he had not committed the offence. He did not say anything else, in the court of the Third Additional Sessions Judge, he was examined as an accused on October 4, 1966 when he gave his age as 18 years and after denying all the allegations, when he was asked generally if he had anything more to say, hewere carrying the dead body of Ramautar in the night by the west of my house. I went there and accompanied them up to P. S. Sarjug sent me back fromasked if he would cite (defence) witness, he replied in the negative. Now on the basis of this material, in our opinion, it is somewhat surprising for the trial court to have observed that the prosecution could have produced Suresh, the cousin of P. W. 12, to disprove the claim of the accused. This claim was not made by the accused Suresh in the committing court. It was only made in clear teens at the trial after the prosecution evidence had concluded. The trial court was, therefore, not justified in concluding on this basis that there was any attempt on the part of the prosecution to falsely implicate innocent persons. It is inconceivable that Suresh accused could have dared, as claimed, in the circumstances of this case, to accompany the dead body upto the police station. Bearing in mind the feelings of hostility between the two groups, the presence of Suresh accused amongst those carrying the dead body to the hospital seems to be a highly unrealistic suggestion which should have been rejected by the trial court without any serious notice. | 0 | 3,398 | 1,048 | ### 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:
whether the High Court has kept in view the guidelines laid down by the Privy Council in Sheo Swarups case (AIR 1934 PC 227 ) and later in numerous cases heard and disposed of by this Court. Those guidelines are well known and have already been adverted to.10. Turning to the case in hand, it is obvious that the trial court had committed several errors in appraising the evidence led in the case. It not only ignored but appears even to have misread part of the evidence in certain respects and as a result thereof arrived at conclusions which on a proper appraisal and reading of the evidence would be clearly erroneous and unsustainable. The trial courts approach in evaluating the evidence appears to us to be unfair and irrational. For example, it has condemned the prosecution by imputing to it attempt to falsely implicate Suresh accused. This is how the trial court has dealt with this matter."One of the important circumstances is that one Suresh had accompanied the dead body to the police station. Accused Suresh claims that it was he who had gone with the dead body and at the police station P.W. 12 Sarjug Missir asked him to go away and he returned home. For the first time it was P.W. 9 who introduced the presence of one Suresh at the place of occurrence and she said that he was her sisters son and in paragraph 12 she denied that it was accused Suresh who had accompanied the dead body of her son. P.W. 3 has stated in paragraph 6 that in the village except accused Suresh there is no other of that name and he had stated before the police that Suresh had carried the dead body of Ramautar to Fatwah P. W. 15 has stated in paragraph 8 that he does not know any Suresh except the accused Suresh. According to P.W. 12 his cousin Suresh is aged about nine or ten and it was he who had gone to the police station along with them But P.W. 19 the investigating officer does not say that he examined any Suresh at the police station or any where thereafter. If actually there had been another Suresh, the prosecution could not have failed to produce him just to disprove the claim of accused Suresh that he had gone with the dead body to Fatwah. Having failed to do so and it being admitted by P. Ws. 3 and is that they do not know of any other Suresh, the only natural inference would be that it is this accused Suresh who had accompanied the dead body to Fatuwa and his statement under Section 342, Cr.P. C. that it was at the Thana that P.W. 12 asked him to return home explains as to why he was not examined by the Police. "Now P.W 3, Parmeshwar Gope was tendered for cross-examination. In his cross-examination on behalf of the accused persons it was extracted that on that day no man named Suresh carried the injured person to hospital and that there was no other Suresh in the village except accused Suresh. It was further extracted that the witness had not made a statement before the police that Suresh and others carried Ramautar to Fatwah and that when Ramautar was lifted and was being carried, there was none else besides the witnesses. This statement was recorded on September 21, 1966. Gaya Devi, P.W. 9 examined on September 26, 1966 denied in cross-examination that accused Suresh had gone to the hospital with her son and that it was not a fact that her sisters son Suresh had not come there. She added that her sisters son Suresh had actually come to her place one day before. P.W. 12, Sarjug Mishra in cross-examination stated that in addition to the witnesses his Mausera brother Suresh had come there after the occurrence. This statement was recorded on September 27, 1966. Jagdish Yadav, P. W. 15 in his cross-examination stated that accused Suresh was not his brother by village relation and that he did not know any other Suresh except this one. Suresh accused was examined in the court of Committing Magistrate on March 4, 1966. In his examination as an accused in that court he gave his age to be 14 years and merely denied the prosecution allegations as false, adding that he had not committed the offence. He did not say anything else, in the court of the Third Additional Sessions Judge, he was examined as an accused on October 4, 1966 when he gave his age as 18 years and after denying all the allegations, when he was asked generally if he had anything more to say, he replied:"People were carrying the dead body of Ramautar in the night by the west of my house. I went there and accompanied them up to P. S. Sarjug sent me back from there."When asked if he would cite (defence) witness, he replied in the negative. Now on the basis of this material, in our opinion, it is somewhat surprising for the trial court to have observed that the prosecution could have produced Suresh, the cousin of P. W. 12, to disprove the claim of the accused. This claim was not made by the accused Suresh in the committing court. It was only made in clear teens at the trial after the prosecution evidence had concluded. The trial court was, therefore, not justified in concluding on this basis that there was any attempt on the part of the prosecution to falsely implicate innocent persons. It is inconceivable that Suresh accused could have dared, as claimed, in the circumstances of this case, to accompany the dead body upto the police station. Bearing in mind the feelings of hostility between the two groups, the presence of Suresh accused amongst those carrying the dead body to the hospital seems to be a highly unrealistic suggestion which should have been rejected by the trial court without any serious notice.
### Response:
0
### Explanation:
8. The legal position is so well settled that we consider it unnecessary to deal with it at great length. It has been reiterated by this Court in innumerable cases, a large number of which are reported in the law reports. To put in a nutshell, once again, the High Court has full power on appeal from acquittal to appraise the evidence for itself just as it is empowered to do on appeal against conviction. The statute, as has repeatedly been said, creates no distinction between the two kinds of appeals. All that the High Court is expected to do in appeals against orders of acquittal, is, that it should bear in mind that there is an initial presumption in favour of innocence of an accused person and that the trial court having acquitted him, this initial presumption should be considered to have been further strengthened to some extent, but certainly not weakened, as a result of the trial courts conclusion. The correctness or otherwise of the conclusions of the trial court, it is true, is the subject of the appeal and is, therefore, open to examination by the High Court. But while appraising the evidence, the High Court should not ignore the importance of the opinion of the trial court which has to be dislodged before reversing the order under appeal. This, in our opinion, is the broad approach required of the High Court when hearing appeals against orders of acquittal.9. This Court is not, as a general rule, expected to examine the entire evidence for itself under Art. 136 of the Constitution in cases where the High Court has, on appeal, reversed the order of acquittal and convicted the accused persons. This Court only examines so much of the evidence as is necessary for the purpose of determining whether the High Court has kept in view the guidelines laid down by the Privy Council in Sheo Swarups case (AIR 1934 PC 227 ) and later in numerous cases heard and disposed of by this Court. Those guidelines are well known and have already been adverted to.10. Turning to the case in hand, it is obvious that the trial court had committed several errors in appraising the evidence led in the case. It not only ignored but appears even to have misread part of the evidence in certain respects and as a result thereof arrived at conclusions which on a proper appraisal and reading of the evidence would be clearly erroneous and unsustainable. The trial courts approach in evaluating the evidence appears to us to be unfair and irrational. For example, it has condemned the prosecution by imputing to it attempt to falsely implicate SureshP.W 3, Parmeshwar Gope was tendered forion on behalf of the accused persons it was extracted that on that day no man named Suresh carried the injured person to hospital and that there was no other Suresh in the village except accused Suresh. It was further extracted that the witness had not made a statement before the police that Suresh and others carried Ramautar to Fatwah and that when Ramautar was lifted and was being carried, there was none else besides the witnesses. This statement was recorded on September 21, 1966. Gaya Devi, P.W. 9 examined on September 26, 1966 denied inthat accused Suresh had gone to the hospital with her son and that it was not a fact that her sisters son Suresh had not come there. She added that her sisters son Suresh had actually come to her place one day before. P.W. 12, Sarjug Mishra instated that in addition to the witnesses his Mausera brother Suresh had come there after the occurrence. This statement was recorded on September 27, 1966. Jagdish Yadav, P. W. 15 in hisstated that accused Suresh was not his brother by village relation and that he did not know any other Suresh except this one. Suresh accused was examined in the court of Committing Magistrate on March 4, 1966. In his examination as an accused in that court he gave his age to be 14 years and merely denied the prosecution allegations as false, adding that he had not committed the offence. He did not say anything else, in the court of the Third Additional Sessions Judge, he was examined as an accused on October 4, 1966 when he gave his age as 18 years and after denying all the allegations, when he was asked generally if he had anything more to say, hewere carrying the dead body of Ramautar in the night by the west of my house. I went there and accompanied them up to P. S. Sarjug sent me back fromasked if he would cite (defence) witness, he replied in the negative. Now on the basis of this material, in our opinion, it is somewhat surprising for the trial court to have observed that the prosecution could have produced Suresh, the cousin of P. W. 12, to disprove the claim of the accused. This claim was not made by the accused Suresh in the committing court. It was only made in clear teens at the trial after the prosecution evidence had concluded. The trial court was, therefore, not justified in concluding on this basis that there was any attempt on the part of the prosecution to falsely implicate innocent persons. It is inconceivable that Suresh accused could have dared, as claimed, in the circumstances of this case, to accompany the dead body upto the police station. Bearing in mind the feelings of hostility between the two groups, the presence of Suresh accused amongst those carrying the dead body to the hospital seems to be a highly unrealistic suggestion which should have been rejected by the trial court without any serious notice.
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PUNJAB STATE ELECTRICITY BOARD AND ANR Vs. THANA SINGH AND ORS | the work performed by the employees on those posts. Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed. Merely on the ground that Sub Fire Officers are categorised in Group XII along with Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors cannot be a ground for seeking parity of pay scale. As submitted by the learned Senior counsel for the appellant-Board, the nature of work, duties, responsibilities and initial qualification for recruitment of each post are entirely different as all these posts belong to different cadre. 23. That apart, though in the year 1988 there were only four posts in Group XII, number of several posts have been subsequently included. Vide Finance Circular No.44/89 dated 15.06.1989, seven more posts were added in Group XII. Thereafter, vide Finance Circular No.45/89 dated 26.06.1989, there was a further increase of seven posts in Group XII. The fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. At the time of the issuance of order dated 03.10.1990 revising the scale of pay of Head Clerks, Head Clerk- cum-Divisional Accountants, Internal Auditors etc., there were various posts included in Group XII. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors is accepted, such parity of scale of pay may have to be extended to all other posts in Group XII which would involve huge financial repercussion on the finance of the Board which is a service- oriented institution. The High Court, in our view, erred in not keeping in view the financial consequences of the direction to give parity of pay scale to the Sub Fire Officers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 , ?it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.? 24. Before the learned Single Judge, the respondents relied upon the letter written by the Superintendent Engineer, GNDTP, Bhatinda to the Chief Engineer, GNDTP, Bhatinda dated 25.03.1991 to consider the request of Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. As rightly contended by the appellant-Board, the letter was written only on the ground that there would not be much financial burden. But the said letter does not indicate any parity of nature of work, responsibilities, functional need, etc. The said letter of the Superintendent Engineer, GNDTP, Bhatinda also did not take note of other various categories of posts included in Group XII. Referring to the said letter dated 25.03.1991 of the Superintendent Engineer, GNDTP, Bhatinda, the learned Single Judge observed that the plea of the respondents for parity of pay scale was supported by the Superintendent Engineer. The learned Single Judge did not keep in view the well factors like source, mode of recruitment, nature of work, etc. for the post of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. 25. In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government. 26. The learned Single Judge, however, proceeded under the erroneous footing that merely because Sub Fire Officers were categorised in Group XII, they were entitled parity of scale of pay with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. Inclusion of posts of Sub Fire Officers in Group XII may not be a determinative factor to hold that the Sub Fire Officers are equal with Head Clerks, Head Clerk-cum-Divisional Accountants, and Internal Auditors. Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:-"29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC 235.) ?Non-uniformities would not in all events violate Article 14.? Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Others v. State of Bihar and Others (1996) 5 SCC 125 , Associate Banks Officers? Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 )?.27. Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group. | 1[ds]11. It is fairly well settled that equation of pay scales must be left to the Government and on the decision of the experts and the Court should not interfere with it.In the year 1988, though the post of Sub Fire Officers has been included in Group XII in one category as that of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors, the nature of work, duties, responsibilities and initial qualifications for recruitment and manner of recruitment to each post are different since all these posts belong to different cadre. The respondents cannot claim as a matter of right that they should be given the similar pay scale as are given to the categories of posts such as Head Clerks, Head Clerk- cum-Divisional Accountants and Internal Auditors.The appellant-Board being an autonomous body governed by its own regulations, it was for the Board to classify its employees/posts on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, the Board would be justified in prescribing different pay scales. Article 14 of the Constitution of India would be applicable only when a discrimination is made out between the persons who are similarly situated and not otherwise. It is the duty of an employee seeking parity of pay to prove and establish that they have been discriminated.The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales.Burden of establishing parity in pay scale and employment is on the person claiming such right. There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. As pointed out earlier, the burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities. In the writ petition, respondents have only claimed parity of pay scale with those of the employees working under the Punjab Government which was not accepted by the learned Single Judge. Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body. When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and take a differentHigh Court, in our view, erred in not keeping in view the financial consequences of the direction to give parity of pay scale to the Sub Fire Officers.In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government.Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group. | 1 | 4,664 | 677 | ### Instruction:
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the work performed by the employees on those posts. Only in cases of complete similarity in the nature of work, duties, responsibilities and promotional channels, parity of pay scale can be claimed. Merely on the ground that Sub Fire Officers are categorised in Group XII along with Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors cannot be a ground for seeking parity of pay scale. As submitted by the learned Senior counsel for the appellant-Board, the nature of work, duties, responsibilities and initial qualification for recruitment of each post are entirely different as all these posts belong to different cadre. 23. That apart, though in the year 1988 there were only four posts in Group XII, number of several posts have been subsequently included. Vide Finance Circular No.44/89 dated 15.06.1989, seven more posts were added in Group XII. Thereafter, vide Finance Circular No.45/89 dated 26.06.1989, there was a further increase of seven posts in Group XII. The fourteen posts which were added to Group XII are:- Punjabi Teacher, Drawing Teacher, Hindi Teacher, D.P.Ed. Teacher, Master/Mistress, Science Teacher, Security Inspector, Modeller Divisional Head Draftsman, Prosecuting Inspector (now Law Officer), Law Officer Grade II, Medical Assistant, Librarian and Fire Officer, etc. At the time of the issuance of order dated 03.10.1990 revising the scale of pay of Head Clerks, Head Clerk- cum-Divisional Accountants, Internal Auditors etc., there were various posts included in Group XII. For all these posts, source and mode of recruitment, qualifications and nature of work are entirely different. If the contention of the Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors is accepted, such parity of scale of pay may have to be extended to all other posts in Group XII which would involve huge financial repercussion on the finance of the Board which is a service- oriented institution. The High Court, in our view, erred in not keeping in view the financial consequences of the direction to give parity of pay scale to the Sub Fire Officers. As held in Union of India and Another v. Manik Lal Banerjee (2006) 9 SCC 643 , ?it is now a well settled principle of law that financial implication is a relevant factor for accepting the revision of pay.? 24. Before the learned Single Judge, the respondents relied upon the letter written by the Superintendent Engineer, GNDTP, Bhatinda to the Chief Engineer, GNDTP, Bhatinda dated 25.03.1991 to consider the request of Sub Fire Officers for parity of pay scale with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. As rightly contended by the appellant-Board, the letter was written only on the ground that there would not be much financial burden. But the said letter does not indicate any parity of nature of work, responsibilities, functional need, etc. The said letter of the Superintendent Engineer, GNDTP, Bhatinda also did not take note of other various categories of posts included in Group XII. Referring to the said letter dated 25.03.1991 of the Superintendent Engineer, GNDTP, Bhatinda, the learned Single Judge observed that the plea of the respondents for parity of pay scale was supported by the Superintendent Engineer. The learned Single Judge did not keep in view the well factors like source, mode of recruitment, nature of work, etc. for the post of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. 25. In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government. 26. The learned Single Judge, however, proceeded under the erroneous footing that merely because Sub Fire Officers were categorised in Group XII, they were entitled parity of scale of pay with pay scale of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors. Inclusion of posts of Sub Fire Officers in Group XII may not be a determinative factor to hold that the Sub Fire Officers are equal with Head Clerks, Head Clerk-cum-Divisional Accountants, and Internal Auditors. Mere difference in pay scale does not always amount to discrimination; it depends upon the mode of selection/recruitment, nature, quality of work and duties and that the status of both the posts are identical. Observing that it is not always impermissible to provide two different pay scales in the same cadre, this Court, in SAIL, held as under:-"29. It is a settled legal proposition that it is not always impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. (Vide State of U.P. and Others v. J.P. Chaurasia and Others (1989) 1 SCC 121 and Mewa Ram Kanojia v. All India Institute of Medical Sciences and Others (1989) 2 SCC 235.) ?Non-uniformities would not in all events violate Article 14.? Thus, a mere difference does not always amount to discrimination. (Vide Madhu Kishwar and Others v. State of Bihar and Others (1996) 5 SCC 125 , Associate Banks Officers? Assn. v. SBI and Others (1998) 1 SCC 428 and Official Liquidator v. Dayanand and Others (2008) 10 SCC 1 )?.27. Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group.
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11. It is fairly well settled that equation of pay scales must be left to the Government and on the decision of the experts and the Court should not interfere with it.In the year 1988, though the post of Sub Fire Officers has been included in Group XII in one category as that of Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors, the nature of work, duties, responsibilities and initial qualifications for recruitment and manner of recruitment to each post are different since all these posts belong to different cadre. The respondents cannot claim as a matter of right that they should be given the similar pay scale as are given to the categories of posts such as Head Clerks, Head Clerk- cum-Divisional Accountants and Internal Auditors.The appellant-Board being an autonomous body governed by its own regulations, it was for the Board to classify its employees/posts on the basis of qualifications, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, the Board would be justified in prescribing different pay scales. Article 14 of the Constitution of India would be applicable only when a discrimination is made out between the persons who are similarly situated and not otherwise. It is the duty of an employee seeking parity of pay to prove and establish that they have been discriminated.The person claiming parity must produce material before the court to prove that the nature of duties and functions are similar and that they are entitled to parity of pay scales.Burden of establishing parity in pay scale and employment is on the person claiming such right. There were neither pleadings nor any material produced by the respondents to prove that the nature of work performed by the Sub Fire Officers is similar with that of the Head Clerks and the Internal Auditors to claim parity of pay scale. As pointed out earlier, the burden lies upon the party who claims parity of pay scale to prove similarity in duties and responsibilities. In the writ petition, respondents have only claimed parity of pay scale with those of the employees working under the Punjab Government which was not accepted by the learned Single Judge. Determination of parity or disparity in duties and responsibilities is a complex issue and the same should be left to the expert body. When the expert body considered revision of pay for various posts, it did not revise the pay scale of Sub Fire Officers. When the expert body has taken such a view, it is not for the courts to substitute its views and interfere with the same and take a differentHigh Court, in our view, erred in not keeping in view the financial consequences of the direction to give parity of pay scale to the Sub Fire Officers.In the writ petition, the respondents have taken the plea that they are entitled to the scale of pay on par with the employees of the Punjab Government in parity of the wages. Nature of work performed by those in the service of Punjab Government are different from those in service of the Board, the learned Single Judge rightly refused to accept the plea of the respondents claiming parity with the employees of the State Government.Respondents have not produced any material to show that there is any similarity/identity between the posts of Sub Fire Officers and the Head Clerks, Head Clerk-cum-Divisional Accountants and Internal Auditors in terms of the nature of duties, responsibilities, qualifications and mode of recruitment etc. to apply the principle of parity of pay scale. The learned Single Judge did not keep in view that the nature of duties and responsibilities performed by the Sub Fire Officers are different and parity cannot be claimed merely on the ground that they are categorised in one group.
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State of Tamil Nadu Vs. State of Kerala & Another | storage faster and better, in case the dam develops any distress. As a gravity dam seldom gives in suddenly, such evacuation will reduce Dam Break flood (DBF) magnitude significantly.d) Though, the demand of the SoK for 1.1 TMC of water for Environmental Flow is not substantiated, yet, a legitimate need which is yet to be assessed, can be met with after the FRL is raised to 142 ft. A small pipe outlet of a suitable diameter through right bank hillock can be dug to release the Environmental Flow as firmed up by the SoTN in consultation with CWC & the SoK.5. That a MoU would have to be executed by the SoTN and the SoK, in the presence of a representative of the Govt. of India, Ministry of Water Resources, regarding the construction of the new tunnel within a specified time.” 215. EC has itself noted that the second alternative is dependent on agreement between the two States but to us there appears to be no possibility of mutual agreement on this aspect as well. The alternatives suggested by EC are worth exploring by the two States but having regard to the unbending stance adopted by them, this does not seem to be possible. We, however, grant liberty to the parties to apply to the Court if they are able to arrive at some amicable solution on either of the two alternatives suggested by the EC. Issue Nos. 2(b) and 11 216. With reference to these issues, it is strenuously urged by Kerala that Tamil Nadu has not suffered any injury because of the reduction of the storage at Mullaperiyar dam to 136 ft. since 1979. According to Kerala, more water was drawn and more area was irrigated after 1979. Kerala has in this regard relied upon the data supplied by Tamil Nadu Public Works Department and the analysis thereof. It is submitted that average water drawn during the pre-1979 period was 19,277 Mcft. while in the post-1979 period the water drawn was 21,434 Mcf. As regards extent of irrigation, Kerala submits that the extent of irrigation in Tamil Nadu from Mullaperiyar, water has admittedly increased from about 1,71,307 acres before 1979 to 2,31,412 acres. Kerala has also relied upon the answers of PW-1 to question Nos. 585 to 601 and 58 to 59. Kerala has also relied upon the decision of this Court in State of Andhra Pradesh3 wherein this Court observed, “…….that in a suit for injunction filed by one State against the other State, the burden on the complaining State is much greater than that generally required to be borne by one seeking an injunction in a suit between private parties. The complaining State has to establish that threatened invasion of rights is substantial and of a serious magnitude. In the matter between States, injunction would not follow because there is infraction of some rights of the complaining State but a case of high equity must be made out that moves the conscience of the Court in granting injunction…….” 217. Tamil Nadu on the other hand asserts that raising the water level in the dam to original FRL is absolutely necessary to irrigate the lands in about 2 lakh acres in five drought-prone districts of Theni, Dindigul, Madurai, Sivagangai and Ramanathanpuram. About 6.8 lakh farmers and agricultural labourers besides 80 lakh people of the above five districts continue to suffer due to inadequate timely supply of water for irrigation and drinking purposes. 218. Pertinently, EC has also considered this aspect and observed as follows: “EC has assessed that increase in irrigation in Vaigai Basin is mainly due to i) construction of Vaigai Dam in 1954 and related canal distribution system post 1974, which worked as a balancing reservoir for release from power station in non-irrigation months from 1954 onwards, and ii) World Bank assisted Modernization of Periyar Vaigai Irrigation Project, phase-I & II, implemented in 1980’s, which enabled improved Water Use Efficiency.Although firming up of irrigation is achieved by the SoTN, there is still large drought-prone area in Vaigai Basin and adjoining area, which needs protective irrigation. Also domestic / municipal / industrial needs of the area are significant. These present requirements remain unmet, if FRL is not restored even partially.EC is unable to accept the submission of the SoK that no harm will be done under these circumstances to the SoTN if FRL is not restored.” 219. Insofar as drawal of water in pre-1979 period and post-1979 period is concerned, the sole witness of Tamil Nadu has admitted that in the post-1979 period the water drawn was 21,434 Mcft. and the average water drawn pre-1979 period was 19,277 Mcft. Similarly, he has admitted increase of irrigation from 1,71,307 acres before 1979 to 2,31,412 acres in 1992-93, but, as observed by EC, this has been due to construction of Vaigai dam in 1954 and related canal distribution system post-1974. The five districts Theni, Dindigul, Madurai, Sivagangai and Ramanathanpuram that are served by Periyar project are drought prone. About 2 lakh acres of land fall in these five districts which needs to be irrigated. The inadequate timely water supply of water for irrigation and drinking purposes to the population of these districts may affect their lives as well as livelihood. The increase of irrigation and more drawal of water post 1979 still appears to be deficient for the population of more than 80 lakh people in these districts. 220. In these facts, therefore, it can safely be said that Tamil Nadu has been able to establish that invasion on its rights is substantial. Tamil Nadu has been able to make out a case for grant of injunction on the principles laid down by this Court in State of Andhra Pradesh3. Moreover, present suit is not a suit for injunction simpliciter as the main prayer is that Kerala Irrigation and Water Conservation (Amendment) Act, 2006 be declared unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam. Findings on Issue Nos. 2(b) and 11 221 | 0[ds]. As a general observation, before we embark upon the discussion on diverse issues, it must be stated, that a suit of this nature cannot and ought not to be decided with very technical approach insofar as pleadings and procedure are concerned. A suit filed in original jurisdiction of this Court is not governed by the procedure prescribed in Civil Procedure Code save and except the procedure which has been expressly made applicable by the Supreme Court Rules. It is also important to bear in mind that the contest between the states is to be settled in the large and ample way that alone becomes the dignity of litigants concerned (State of Andhra Pradesh [State of Andhra Pradesh v. State of Maharashtra and Ors.; [(2013) 5 SCC 68] .]). Unfortunately, there is a sharp conflict over each and every aspect of the subject matter between the contesting states. Even in respect of the report submitted by the EC chaired by a former Chief Justice of this Court, one nominee each of the two states who are former judges of this Court and two renowned technical experts, the two states have different views although EC has submitted its report after a very tedious and minute consideration of facts on the safety of the Mullaperiyar dam, which embraced the reports of tests, investigation and technical studies carried out through the three apex organizations, besides through other specialist organizations of the Government of India and specialist expert agencies and also after site appraisal. Moreover, the investigations, tests and technical studies were directed to be carried out by the EC in association with the representatives of both the States.It is true that Section 7(1)(b) of Act of 1947 Act uses the expressionbut, in our opinion, the wordis not intended to cover the agreements which are not political in nature. This is clear from the purpose of Section 7 as it deals with lapsing of suzerainty of His Majesty over the Indian States and the consequence of lapsing of suzerainty. Obviously, the provision was not intended to cover the agreements and treaties other than political. We, accordingly, hold that Section 7(1)(b) concerns only with political treaties andwe are unable to accept the argument of Kerala that Madras ceased to be a lessee on 15.08.1947. It is pertinent to observe here that Kerala entered into the supplemental agreements with Tamil Nadu in 1970. In these supplemental agreements, the continuance of 1886 lease is stated in clear and unambiguous words. Had 1886 Lease Agreement ceased to be operational on and from 15.08.1947, there was no occasion for Kerala to enter into supplemental agreements with Tamil Nadu in 1970. By first supplemental agreement, Tamil Nadu surrendered the fishing rights in the leased lands and also agreed to the upward revision of the rent of the leased land. The second supplemental agreement conferred on Tamil Nadu the right to generate power and right to construct all facilities required for power generation. An additional extent of 42.7 acres was leased to Tamil Nadu for the said purposes. Mr. Harish N. Salve, learned senior counsel for Kerala argued that 1970 supplemental agreements and the statement therein about continuance of 1886 Lease Agreement were based on a mistake of law (wrongful assumption) of continuance of lease of 1886. The submission of the learned senior counsel for Kerala can hardly be accepted firstly, in view of our finding that 1886 Lease Agreement continued on and from 15.08.1947 and secondly, in view of the decision of this Court in State of Andhra Pradesh3, wherein a three-Judge Bench of this Court speaking through one of us (R.M. Lodha, J., as he then was) observed,an agreement is entered into between two or more states, they have assistance of competent, legal and technical minds available with them. The states do not have lack of drafting ability. Such agreement is provided by trained minds…….The 1970 supplemental agreements having been entered into by two high parties, namely, State of Kerala and State of Tamil Nadu, it can hardly be accepted that the continuance of 1886 lease was wrongly assumed though it had lapsed on 15.08.1947. Kerala obviously must have had competent and legal minds available with them when supplemental agreements were entered into in 1970 with Tamil Nadu. There is no merit in the argument of Kerala that supplemental agreements were based on mistake of law.Is 1886 Lease Agreement an act of State or International Treaty? The answer has to be in the negative. It is well settled that an act of State is the taking over of sovereign powers by a State in respect of territory which was not till then part of it, by conquest, treaty, cession or otherwise, and the municipal courts recognised by the new sovereign have the power and jurisdiction to investigate and ascertain only such rights as the new sovereign has chosen to recognise or acknowledge by legislation, agreement or otherwise, and that such a recognition may be express or may be implied from the circumstances. 1886 Lease Agreement is an ordinary contract of lease. Merely, because the contract was arrived at between the Crown through the Secretary of State and the Travancore State –a princely Indian State – the nature of contract is not changed and it does not become a political arrangement. As noted above, this Court in Mullaperiyar Environmental Protection Forum1 has already declared that 1886 Lease Agreement is not political in nature. We are in agreement with this view. The same reasoning applies equally to standstill agreement.The documents referred to in Article 363 are those which are political in nature. Any dispute regarding such documents is non-justiciable. The object behind Article 363 is to bind the Indian Rulers with treaties, agreements, covenants, engagements, sanads or other similar instruments entered into or executed before the commencement of the Constitution and to prevent the Indian Rulers from resiling from such agreements as the integrity of India was to be maintained at all cost and could not be affected by raising certain disputes. It may be of relevance to refer to the White Paper on Indian States prepared by the Government of India in 1948 which brings out the historical perspective which necessitated the adoption of the provisions in Article 363. It says363 has therefore been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of courts except in cases which may be referred to the Supreme Court by theConstitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized separation of power as a basic feature of the Constitution and an essential constituent of the rule of law. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs – legislature, executive and judiciary.It is true that thesovereign interests provide the foundation of the public trust doctrine but the judicial function is also a very important sovereign function of the State and the foundation of the rule of law. The legislature cannot by invoking ‘public trustindirectly control the action of the Courts and directly or indirectly set aside the authoritative and binding finding of fact by the Court, particularly, in situations where the executive branch (Government of the State) was a party in the litigation and the final judgment was delivered after hearing them.The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate it, is noted to be rejected. What has been found as a fact by judicial determination cannot be declared otherwise by applying legal fiction. We are, however, persuaded to accept the submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that the Mullaperiyar dam is safe was found by this Court and that finding of fact can never be deemed to be imaginary by a legal fiction which then proceeds to deem the opposite to be real, viz., that the dam is endangered. This is not a matter of legislative policy as it is being made out to be, rather in our opinion, it is incursion in the judicial process and functions of judicial organ. The declaration in Section 62A read with item No. 1 of the Second Schedule leaves no manner of doubt that the enactment is intended to reach the question decided by the Court.151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum (supra) and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.Where a dispute between two States has already been adjudicated upon by this Court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power.It is true that averment of Tamil Nadu in the plaint that the two States – Kerala and Tamil Nadu – are riparian States is not right in its entirety because Tamil Nadu is not a riparian State but the status of Periyar river as inter-State river, on the basis of what we have observed above, cannot be overlooked. It is not open to Kerala to take a totally inconsistent plea and begin fresh controversy about the status of Periyar river on the ground that the earlier plea was founded on some erroneous premise. In our view, Kerala cannot be permitted to contend that Periyar river is not an inter-State | 0 | 50,200 | 2,145 | ### Instruction:
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storage faster and better, in case the dam develops any distress. As a gravity dam seldom gives in suddenly, such evacuation will reduce Dam Break flood (DBF) magnitude significantly.d) Though, the demand of the SoK for 1.1 TMC of water for Environmental Flow is not substantiated, yet, a legitimate need which is yet to be assessed, can be met with after the FRL is raised to 142 ft. A small pipe outlet of a suitable diameter through right bank hillock can be dug to release the Environmental Flow as firmed up by the SoTN in consultation with CWC & the SoK.5. That a MoU would have to be executed by the SoTN and the SoK, in the presence of a representative of the Govt. of India, Ministry of Water Resources, regarding the construction of the new tunnel within a specified time.” 215. EC has itself noted that the second alternative is dependent on agreement between the two States but to us there appears to be no possibility of mutual agreement on this aspect as well. The alternatives suggested by EC are worth exploring by the two States but having regard to the unbending stance adopted by them, this does not seem to be possible. We, however, grant liberty to the parties to apply to the Court if they are able to arrive at some amicable solution on either of the two alternatives suggested by the EC. Issue Nos. 2(b) and 11 216. With reference to these issues, it is strenuously urged by Kerala that Tamil Nadu has not suffered any injury because of the reduction of the storage at Mullaperiyar dam to 136 ft. since 1979. According to Kerala, more water was drawn and more area was irrigated after 1979. Kerala has in this regard relied upon the data supplied by Tamil Nadu Public Works Department and the analysis thereof. It is submitted that average water drawn during the pre-1979 period was 19,277 Mcft. while in the post-1979 period the water drawn was 21,434 Mcf. As regards extent of irrigation, Kerala submits that the extent of irrigation in Tamil Nadu from Mullaperiyar, water has admittedly increased from about 1,71,307 acres before 1979 to 2,31,412 acres. Kerala has also relied upon the answers of PW-1 to question Nos. 585 to 601 and 58 to 59. Kerala has also relied upon the decision of this Court in State of Andhra Pradesh3 wherein this Court observed, “…….that in a suit for injunction filed by one State against the other State, the burden on the complaining State is much greater than that generally required to be borne by one seeking an injunction in a suit between private parties. The complaining State has to establish that threatened invasion of rights is substantial and of a serious magnitude. In the matter between States, injunction would not follow because there is infraction of some rights of the complaining State but a case of high equity must be made out that moves the conscience of the Court in granting injunction…….” 217. Tamil Nadu on the other hand asserts that raising the water level in the dam to original FRL is absolutely necessary to irrigate the lands in about 2 lakh acres in five drought-prone districts of Theni, Dindigul, Madurai, Sivagangai and Ramanathanpuram. About 6.8 lakh farmers and agricultural labourers besides 80 lakh people of the above five districts continue to suffer due to inadequate timely supply of water for irrigation and drinking purposes. 218. Pertinently, EC has also considered this aspect and observed as follows: “EC has assessed that increase in irrigation in Vaigai Basin is mainly due to i) construction of Vaigai Dam in 1954 and related canal distribution system post 1974, which worked as a balancing reservoir for release from power station in non-irrigation months from 1954 onwards, and ii) World Bank assisted Modernization of Periyar Vaigai Irrigation Project, phase-I & II, implemented in 1980’s, which enabled improved Water Use Efficiency.Although firming up of irrigation is achieved by the SoTN, there is still large drought-prone area in Vaigai Basin and adjoining area, which needs protective irrigation. Also domestic / municipal / industrial needs of the area are significant. These present requirements remain unmet, if FRL is not restored even partially.EC is unable to accept the submission of the SoK that no harm will be done under these circumstances to the SoTN if FRL is not restored.” 219. Insofar as drawal of water in pre-1979 period and post-1979 period is concerned, the sole witness of Tamil Nadu has admitted that in the post-1979 period the water drawn was 21,434 Mcft. and the average water drawn pre-1979 period was 19,277 Mcft. Similarly, he has admitted increase of irrigation from 1,71,307 acres before 1979 to 2,31,412 acres in 1992-93, but, as observed by EC, this has been due to construction of Vaigai dam in 1954 and related canal distribution system post-1974. The five districts Theni, Dindigul, Madurai, Sivagangai and Ramanathanpuram that are served by Periyar project are drought prone. About 2 lakh acres of land fall in these five districts which needs to be irrigated. The inadequate timely water supply of water for irrigation and drinking purposes to the population of these districts may affect their lives as well as livelihood. The increase of irrigation and more drawal of water post 1979 still appears to be deficient for the population of more than 80 lakh people in these districts. 220. In these facts, therefore, it can safely be said that Tamil Nadu has been able to establish that invasion on its rights is substantial. Tamil Nadu has been able to make out a case for grant of injunction on the principles laid down by this Court in State of Andhra Pradesh3. Moreover, present suit is not a suit for injunction simpliciter as the main prayer is that Kerala Irrigation and Water Conservation (Amendment) Act, 2006 be declared unconstitutional and ultra vires in its application to and effect on the Mullaperiyar dam. Findings on Issue Nos. 2(b) and 11 221
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the Indian Rulers from resiling from such agreements as the integrity of India was to be maintained at all cost and could not be affected by raising certain disputes. It may be of relevance to refer to the White Paper on Indian States prepared by the Government of India in 1948 which brings out the historical perspective which necessitated the adoption of the provisions in Article 363. It says363 has therefore been embodied in the Constitution which excludes specifically the Agreements of Merger and the Covenants from the jurisdiction of courts except in cases which may be referred to the Supreme Court by theConstitution, unlike Constitution of United States of America and Australia, does not have express provision of separation of powers. However, the structure provided in our Constitution leaves no manner of doubt that the doctrine of separation of powers runs through the Indian Constitution. It is for this reason that this Court has recognized separation of power as a basic feature of the Constitution and an essential constituent of the rule of law. The doctrine of separation of powers is, though, not expressly engrafted in the Constitution, its sweep, operation and visibility are apparent from the Constitution. Indian Constitution has made demarcation without drawing formal lines between the three organs – legislature, executive and judiciary.It is true that thesovereign interests provide the foundation of the public trust doctrine but the judicial function is also a very important sovereign function of the State and the foundation of the rule of law. The legislature cannot by invoking ‘public trustindirectly control the action of the Courts and directly or indirectly set aside the authoritative and binding finding of fact by the Court, particularly, in situations where the executive branch (Government of the State) was a party in the litigation and the final judgment was delivered after hearing them.The contention of Mr. Harish Salve that by declaring dam unsafe, the legislature has not rendered any finding of fact; it deems dam unsafe and sets up an Authority to regulate it, is noted to be rejected. What has been found as a fact by judicial determination cannot be declared otherwise by applying legal fiction. We are, however, persuaded to accept the submission of Mr. Vinod Bobde, learned senior counsel for Tamil Nadu that the fact that the Mullaperiyar dam is safe was found by this Court and that finding of fact can never be deemed to be imaginary by a legal fiction which then proceeds to deem the opposite to be real, viz., that the dam is endangered. This is not a matter of legislative policy as it is being made out to be, rather in our opinion, it is incursion in the judicial process and functions of judicial organ. The declaration in Section 62A read with item No. 1 of the Second Schedule leaves no manner of doubt that the enactment is intended to reach the question decided by the Court.151. The question whether or not the legislature has usurped the judicial power or enacted a law in breach of separation of powers principle would depend on facts of each case after considering the real effect of law on a judgment or a judicial proceeding. One of the tests for determining whether a judgment is nullified is to see whether the law and the judgment are inconsistent and irreconcilable so that both cannot stand together. In what we have already discussed above, it is abundantly clear that on the one hand there is a finding of fact determined by this Court on hearing the parties on the basis of the evidence/materials placed on record in the judgment of this Court in Mullaperiyar Environmental Protection Forum (supra) and on the other in 2006 (Amendment) Act, the Kerala legislature has declared the dam being an endangered one and fixed the water level in the dam at 136 ft. If the judgment of this Court in Mullaperiyar Environmental Protection Forum1 and the 2006 (Amendment) Act are placed side by side insofar as safety of the Mullaperiyar dam for raising the water level from 136 ft. to 142 ft. is concerned, it is obvious that the judgment of this Court and the law enacted by Kerala State legislature cannot stand together and they are irreconcilable and inconsistent. The impugned law is a classic case of nullification of a judgment simpliciter, as in the judgment of this Court the question of safety of dam was determined on the basis of materials placed before it and not on the interpretation of any existing law and there was no occasion for the legislature to amend the law by altering the basis on which the judgment was founded. When the impugned law is not a validation law, there is no question of the legislature removing the defect, as the Court has not found any vice in the existing law and declared such law to be bad.Where a dispute between two States has already been adjudicated upon by this Court, which it is empowered to deal with, any unilateral law enacted by one of the parties that results in overturning the final judgment is bad not because it is affected by the principles of res judicata but because it infringes the doctrine of separation of powers and rule of law, as by such law, the legislature has clearly usurped the judicial power.It is true that averment of Tamil Nadu in the plaint that the two States – Kerala and Tamil Nadu – are riparian States is not right in its entirety because Tamil Nadu is not a riparian State but the status of Periyar river as inter-State river, on the basis of what we have observed above, cannot be overlooked. It is not open to Kerala to take a totally inconsistent plea and begin fresh controversy about the status of Periyar river on the ground that the earlier plea was founded on some erroneous premise. In our view, Kerala cannot be permitted to contend that Periyar river is not an inter-State
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FIRM RAJASTHAN UDYOG & ORS. Vs. HINDUSTAN ENGINEERING AND INDUSTRIES LTD | the land at the price so declared by the Arbitrator in its Award, could not be directed. 39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award. 40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 1908. This Court in the case of Ramesh Kumar vs. Furu Ram (2011) 8 SCC 613 had considered the effect of non-registration of an Arbitration Award relating to right, title and interest in an immovable property and held as under: 46. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immovable property of the value of more than Rs 100 which was not the subject of the dispute or reference to arbitration. Therefore, the awards were compulsorily registrable. If they were not registered, they could not be acted upon under Section 49 of the Registration Act, 1908 nor could a decree be passed in terms of such unregistered awards. 41. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present case. 42. In support of his contention that the powers of the executing Court are wide enough, learned Senior Counsel for the respondent has relied on the decision of this Court in the case of Bhavan Vaja vs Solanki Hanuji Khodaji Mansang (1973) 2 SCC 40 , wherein it has been held that: 20…………For Construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it……… The question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case. 43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 , which in our opinion are both distinguishable on facts. In the case of Meenakshi Saxena (supra), there was a clear verdict of the Consumer Court, which was to be executed by the Court. In paragraph 17 of the said judgment, this Court held that the whole purpose of the execution proceedings is to enforce the verdict of the Court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. In the case of Topanmal (supra), the decree under consideration was against the partnership firm and was to be executed against the personal assets of the partners. In paragraph 4 of the said judgment, this Court held that at the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65: (AIR 1944 P.C. 46). In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. In the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.1980. 44. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed. | 1[ds]21. The anchor sheet of the case of the respondent is the Agreement dated 01.02.1980 between the parties (i.e. appellant and respondent) as well as the Arbitration award dated 09.06.198527. In our considered opinion, in the facts of the present case, the answer to the same would be an emphatic no28. There cannot be any doubt that in terms of the Agreement dated 01.02.1980, the Arbitrator was authorized to only fix the price of the land which was to be sold by the appellant to the respondent as per the aforesaid agreement. In the said Agreement dated 01.02.1980, there was an option given to the respondent to either accept the price fixed by the Arbitrator and go ahead with the sale deed, or to refuse to get the sale deed executed at the price fixed by the Arbitrator. Thus, there was no certainty that the sale was to be executed at the price fixed by the Arbitrator. As such, it was the Agreement dated 01.02.1980 alone which could have been executed at the price fixed by the Arbitrator, in case the respondent agreed to the same29. After the passing of the Award by the Arbitrator dated 09.06.1985, which was later confirmed and made Rule of the Court by the Rajasthan High Court on 01.12.1993 and the Special Leave Petition filed by the appellant against the said order was dismissed on 29.03.1994 and the Award had attained finality, the respondent filed a Civil Suit No.60 of 1996 for specific performance of the Agreement dated 01.02.1980. It was this suit for specific performance of agreement under which a direction could have been issued for execution of the sale deed in terms of the Agreement dated 01.02.1980. However, the same was unconditionally withdrawn on 13.02.2006, on an application filed by the respondent on 06.02.2006. With the withdrawal of such suit for specific performance, the matter with regard to the execution of the sale deed in terms of the Agreement dated 01.02.1980 came to an end. The effect of withdrawing Civil Suit No. 60 of 1996 would be that the plaintiff therein (respondent herein) had abandoned its claim of execution of the sale deed in terms of the Agreement dated 01.02.1980, which would be clear from the provisions of Rule 1(4) of Order XXIII CPC30. From the facts of this case, it is clear that the Award passed by the Arbitrator could not be independently executed, as the same was only for fixation of price of land and not for enforcement of the Agreement. The Award was only declaratory of the price of the land. As per the agreement, if the respondent agreed to the price so fixed, it could then get the sale deed executed in terms of the Agreement dated 01.02.1980 as it had the option of either accepting the price and getting the sale deed executed, or not accepting the price and thus not getting the sale deed executed. This would clearly mean that the Award was merely for the declaration of the price of the land, which would be subject to the agreement and it was not necessary for the respondent to get the sale deed executed at the price so determined by the Arbitrator. What was thus executable was the agreement, and not the Award. The relief granted by the Court below for execution of the sale deed in terms of the Award, is thus outside the realm of law, as the Award did not contemplate the transfer of land in favour of the respondent, but only determined the price of land31. It is also noteworthy that the application for execution of Award filed on 16.05.1994 before the Additional District Judge-I, Bharatpur did not provide for any provision of law under which the same was filed. Though, in paragraph 2 of the said application, it was mentioned that the Award of the Arbitrator contained a direction for execution of the Award, but in fact there was no such direction issued in the Award, in which the Arbitrator had only fixed the price of the land and nothing more32. In our view, once the respondent had given up its claim of execution of sale deed in terms of the Agreement dated 01.02.1980 by withdrawing the suit for specific performance of the agreement (Civil Suit No. 60 of 1996), which was permitted to be withdrawn unconditionally on 13.02.2006, the appellant had abandoned its claim for execution of the sale deed. Thus, in our opinion, the respondent could not be permitted to achieve the goal of execution of sale deed by indirectly claiming for execution of Award, when the direct claim for execution of sale deed of the Agreement dated 01.02.1980 had been abandoned by the respondent33. At the cost of repetition, it may be mentioned that the specific performance could only be of the Agreement dated 01.02.1980 and not of the Award dated 09.06.1985. Even the operative portion of the Award also does not give any direction for execution of the sale deed. It was after the passing of the Award that the respondent could have fallen back on the agreement for execution of the sale deed, which respondent did by filing the suit for specific performance, but abandoned such claim by withdrawing the suit unconditionally34. The submission of the learned Senior Counsel for the respondent that substantial justice has been done by the Court by directing execution of the sale deed, is not worthy of acceptance. In a Civil Case, the Courts have to follow the law in letter and spirit, which has not been done in the present case, as in law the sale deed could have been directed to be executed in execution of the Agreement dated 01.02.1980 and not the Award, which was only a declaration, fixing the price of landIt is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the Arbitrator in its Award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the Arbitrator in its Award, could not be directed39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 190841. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present caseThe question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 ,which in our opinion are both distinguishable on factsIn the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.198044. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed. | 1 | 8,335 | 1,671 | ### Instruction:
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the land at the price so declared by the Arbitrator in its Award, could not be directed. 39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award. 40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 1908. This Court in the case of Ramesh Kumar vs. Furu Ram (2011) 8 SCC 613 had considered the effect of non-registration of an Arbitration Award relating to right, title and interest in an immovable property and held as under: 46. Thus the awards are clearly documents which purport or operate to create and declare a right, title or interest in an immovable property of the value of more than Rs 100 which was not the subject of the dispute or reference to arbitration. Therefore, the awards were compulsorily registrable. If they were not registered, they could not be acted upon under Section 49 of the Registration Act, 1908 nor could a decree be passed in terms of such unregistered awards. 41. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present case. 42. In support of his contention that the powers of the executing Court are wide enough, learned Senior Counsel for the respondent has relied on the decision of this Court in the case of Bhavan Vaja vs Solanki Hanuji Khodaji Mansang (1973) 2 SCC 40 , wherein it has been held that: 20…………For Construing a decree it can and in appropriate cases, it ought to take into consideration the pleadings as well as the proceedings leading up to the decree. In order to find out the meaning of the words employed in a decree the Court, often has to ascertain the circumstances under which those words came to be used. That is the plain duty of the execution Court and if that Court fails to discharge that duty it has plainly failed to exercise the jurisdiction vested in it……… The question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case. 43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 , which in our opinion are both distinguishable on facts. In the case of Meenakshi Saxena (supra), there was a clear verdict of the Consumer Court, which was to be executed by the Court. In paragraph 17 of the said judgment, this Court held that the whole purpose of the execution proceedings is to enforce the verdict of the Court. Executing court while executing the decree is only concerned with the execution part of it but nothing else. The court has to take the judgment in its face value. In the case of Topanmal (supra), the decree under consideration was against the partnership firm and was to be executed against the personal assets of the partners. In paragraph 4 of the said judgment, this Court held that at the worst the decree can be said to be ambiguous. In such a case it is the duty of the executing Court to construe the decree. For the purpose of interpreting a decree, when its terms are ambiguous, the Court would certainly be entitled to look into the pleadings and the judgment: see Manakchand v. Manoharlal, 71 Ind. App. 65: (AIR 1944 P.C. 46). In the plaint in the Agra suit, Suit No. 205 of 1949, not only relief was asked for against the firm, but also a personal decree was claimed against defendants 2 to 6. In the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.1980. 44. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.
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What was thus executable was the agreement, and not the Award. The relief granted by the Court below for execution of the sale deed in terms of the Award, is thus outside the realm of law, as the Award did not contemplate the transfer of land in favour of the respondent, but only determined the price of land31. It is also noteworthy that the application for execution of Award filed on 16.05.1994 before the Additional District Judge-I, Bharatpur did not provide for any provision of law under which the same was filed. Though, in paragraph 2 of the said application, it was mentioned that the Award of the Arbitrator contained a direction for execution of the Award, but in fact there was no such direction issued in the Award, in which the Arbitrator had only fixed the price of the land and nothing more32. In our view, once the respondent had given up its claim of execution of sale deed in terms of the Agreement dated 01.02.1980 by withdrawing the suit for specific performance of the agreement (Civil Suit No. 60 of 1996), which was permitted to be withdrawn unconditionally on 13.02.2006, the appellant had abandoned its claim for execution of the sale deed. Thus, in our opinion, the respondent could not be permitted to achieve the goal of execution of sale deed by indirectly claiming for execution of Award, when the direct claim for execution of sale deed of the Agreement dated 01.02.1980 had been abandoned by the respondent33. At the cost of repetition, it may be mentioned that the specific performance could only be of the Agreement dated 01.02.1980 and not of the Award dated 09.06.1985. Even the operative portion of the Award also does not give any direction for execution of the sale deed. It was after the passing of the Award that the respondent could have fallen back on the agreement for execution of the sale deed, which respondent did by filing the suit for specific performance, but abandoned such claim by withdrawing the suit unconditionally34. The submission of the learned Senior Counsel for the respondent that substantial justice has been done by the Court by directing execution of the sale deed, is not worthy of acceptance. In a Civil Case, the Courts have to follow the law in letter and spirit, which has not been done in the present case, as in law the sale deed could have been directed to be executed in execution of the Agreement dated 01.02.1980 and not the Award, which was only a declaration, fixing the price of landIt is thus clear that execution of an award can be only to the extent what has been awarded/decreed and not beyond the same. In the present case, the Arbitrator in its Award had only declared the price of land and nothing more. Thus, the question of execution of a sale deed of the land at the price so declared by the Arbitrator in its Award, could not be directed39. Even otherwise, there cannot be any equity in favour of the respondent, as neither any amount was paid nor deposited by the respondent. No earnest money was also paid by the respondent. It was only the stamp paper worth Rs.1,21,870/-, which was deposited by the respondent along with a deposit of Rs.5,500/- in Court at the time of filing of the application on 16.05.1994 for execution of the Award40. It is also noteworthy that neither the Agreement dated 01.02.1980 nor the Award dated 09.06.1985 had been registered under the Registration Act, 190841. Although, in the present case, the Award did not relate to right, title or interest in an immovable property and was only for determination of the price of land, yet if the execution court was to treat the same for execution of sale deed of land (immovable property), it ought to have considered the impact of non-registration of such Award, which has not been done in the present caseThe question in the present case is different, which is as to whether the execution of an award could have been directed in the absence of there being any direction in the Award for execution of the sale deed, which direction could have been given only in the case of execution of the Agreement dated 01.02.1980. The question under consideration in the aforesaid case was that of a decree which was under execution, whereas there was no such decree passed by any Court which was to be executed in the present case. The facts of the present case are thus distinguishable from those in the aforesaid case43. Learned Senior Counsel for the respondent has also relied on the decisions of this Court rendered in Meenakshi Saxena vs ECGC Limited (2018) 7 SCC 479 as well as Topanmal Chhotamal vs Kundomal Gangaram AIR 1960 SC 388 ,which in our opinion are both distinguishable on factsIn the present case, the Court is concerned about execution of the Award and not the Agreement. In the Award passed by the Arbitrator, the price of land was fixed, which was to be executed in terms of the Agreement dated 01.02.1980, and that too at the option of the respondent. Thus, there could be no direction to execute the sale deed at the price fixed in the Award, that too in a petition for execution of the Award, without there being any prayer for execution of the Agreement dated 01.02.198044. Going behind the decree for doing complete justice would not mean that the entire nature of the case could be changed, and what was not awarded in favour of the respondent, could be granted by the executing court. It was only after the respondent had exercised its right to purchase the land at the price fixed by the Arbitrator that a right to enforce the Agreement could have arisen in favour of the respondent. The Award of the Arbitrator, in the present case, in itself was not a conclusive contract between the parties, which could be executed.
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Laxminarayan Dipchand Maheshwari & Ors Vs. Maharashtra Revenue Tribunal & Ors | shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands:"xx xx xxSection 49A (1) may also be read:49A (1). "Notwithstanding, anything contained in Section 41 or 46, or any custom, usage, decree contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day of April 1963 the ownership of all land held by a tenant (being land which is not transferred to the tenant under Section 46 or which is not purchased by him under Section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land if such land is cultivated by him personally, and...xx xx xx6. It is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sub-sec. (14A) of Section 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the land would arise. He also submits that Section 49A is not applicable in the instant case as the opening non obstante clause of that section makes no reference to Section 43 (14A) while specifically mentions Section 41 and Section 46.7. We may at once say that Section 49A is not attracted in the instant case since the section provides for ownership of land which is not transferred to the tenant under Section 46 or which is not purchased by the tenant under Section 41 or Section 50.It is admitted by the learned counsel that the land in question was not purchased by the tenant under Section 41 or under Section 50. The only contention is that this land cannot be the subject matter for compulsory transfer of ownership under Section 46.8. Sub-section (14A) of Section 43 was inserted by Maharashtra Act 2 of 1962 with effect from March 1, 1962. On the other hand Sec. 46 (l) brings about a legal consequence with regard to transfer of ownership of land to tenants on and from April 1, 1961. Section 46 (1) provides clearly and unambiguously that notwithstanding anything contained in Chapter III (containing Ss. 38 to 57) the ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from April 1. 1961, from which date such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the tenanted lands by operation of law and there is a statutory vesting of the lands in them. This legal vesting by operation of Section 46 on and from April 1. l961, cannot be divested in absence of any clear provision under the Act to that effect only by reference to a prospective provision like sub-section (14A) of Section 43 which came by an amendment much later on March 1, 1962.It is, therefore, not even necessary to consider the legal effect of the amalgam of the three Sections, namely, sub-section (14A) of Sec. 43, Section 46 and Section 49A in this appeal. We are satisfied the revenue authorities were justified in taking action under Section 46 read with Section 48 and the order cannot be challenged as unsustainable in law.9. The learned counsel next contends that Section 46 of the Act is violative of Article 19 (1) (f) of the Constitution and is not saved by Article 31A-which is not applicable. Counsel submits that under Section 46 there is no acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights in order to come within the saving provision of Article 31A (1) (a). According to counsel the land is transferred from the landlord and vests in the tenant by virtue of Section 46. There is therefore, no acquisition by the State of any estate or of any rights therein nor is there any extinguishment or modification of such rights in favour of the State. Section 46 and such other provisions in the Act are in furtherance of agrarian reforms which are one of the principal objects of the Act. The fact that Section in terms transfers the land from landlord to tenant and vests the ownership in the latter does not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole reason that there is no express mention of such acquisition by the State in terms. The scheme underlying the provisions may be briefly stated. The State being the paramount owner of the lands had earlier granted the land to the tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the State will have to take is to extinguish the rights of the tenure holders under the paramount owner. It is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the, landlord in the estate end conferment of the same right upon the tenant. Once that happens there is in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the tenant. There is, therefore, no substance in the contention that Article 31A is not applicable in this case to enable the appellants to challenge the provision under Article 19 (1) (f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since Article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation of Article 14 of the Constitution. | 0[ds]7. We may at once say that Section 49A is not attracted in the instant case since the section provides for ownership of land which is not transferred to the tenant under Section 46 or which is not purchased by the tenant under Section 41 or Section46 (1) provides clearly and unambiguously that notwithstanding anything contained in Chapter III (containing Ss. 38 to 57) the ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from April 1. 1961, from which date such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the tenanted lands by operation of law and there is a statutory vesting of the lands in them. This legal vesting by operation of Section 46 on and from April 1. l961, cannot be divested in absence of any clear provision under the Act to that effect only by reference to a prospective provision like sub-section (14A) of Section 43 which came by an amendment much later on March 1, 1962.It is, therefore, not even necessary to consider the legal effect of the amalgam of the three Sections, namely, sub-section (14A) of Sec. 43, Section 46 and Section 49A in this appeal. We are satisfied the revenue authorities were justified in taking action under Section 46 read with Section 48 and the order cannot be challenged as unsustainable in46 and such other provisions in the Act are in furtherance of agrarian reforms which are one of the principal objects of the Act. The fact that Section in terms transfers the land from landlord to tenant and vests the ownership in the latter does not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole reason that there is no express mention of such acquisition by the State in terms. The scheme underlying the provisions may be briefly stated. The State being the paramount owner of the lands had earlier granted the land to the tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the State will have to take is to extinguish the rights of the tenure holders under the paramount owner. It is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the, landlord in the estate end conferment of the same right upon the tenant. Once that happens there is in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the tenant. There is, therefore, no substance in the contention that Article 31A is not applicable in this case to enable the appellants to challenge the provision under Article 19 (1) (f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since Article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation of Article 14 of the Constitution. | 0 | 1,793 | 606 | ### 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:
shall stand transferred to and vest in, such tenants and from such date such tenants shall be deemed to be the full owners of such lands:"xx xx xxSection 49A (1) may also be read:49A (1). "Notwithstanding, anything contained in Section 41 or 46, or any custom, usage, decree contract or grant to the contrary but subject to the provisions of this section, on and from the 1st day of April 1963 the ownership of all land held by a tenant (being land which is not transferred to the tenant under Section 46 or which is not purchased by him under Section 41 or 50) shall stand transferred to and vest in, such tenant who shall, from the date aforesaid, be deemed to be the full owner of such land if such land is cultivated by him personally, and...xx xx xx6. It is submitted by Dr. Barlingay that since the tenant had not exercised his right to purchase the land in question, under sub-sec. (14A) of Section 43 the land shall be deemed to have been surrendered to the landlords and no question of statutory transfer of ownership of the land would arise. He also submits that Section 49A is not applicable in the instant case as the opening non obstante clause of that section makes no reference to Section 43 (14A) while specifically mentions Section 41 and Section 46.7. We may at once say that Section 49A is not attracted in the instant case since the section provides for ownership of land which is not transferred to the tenant under Section 46 or which is not purchased by the tenant under Section 41 or Section 50.It is admitted by the learned counsel that the land in question was not purchased by the tenant under Section 41 or under Section 50. The only contention is that this land cannot be the subject matter for compulsory transfer of ownership under Section 46.8. Sub-section (14A) of Section 43 was inserted by Maharashtra Act 2 of 1962 with effect from March 1, 1962. On the other hand Sec. 46 (l) brings about a legal consequence with regard to transfer of ownership of land to tenants on and from April 1, 1961. Section 46 (1) provides clearly and unambiguously that notwithstanding anything contained in Chapter III (containing Ss. 38 to 57) the ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from April 1. 1961, from which date such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the tenanted lands by operation of law and there is a statutory vesting of the lands in them. This legal vesting by operation of Section 46 on and from April 1. l961, cannot be divested in absence of any clear provision under the Act to that effect only by reference to a prospective provision like sub-section (14A) of Section 43 which came by an amendment much later on March 1, 1962.It is, therefore, not even necessary to consider the legal effect of the amalgam of the three Sections, namely, sub-section (14A) of Sec. 43, Section 46 and Section 49A in this appeal. We are satisfied the revenue authorities were justified in taking action under Section 46 read with Section 48 and the order cannot be challenged as unsustainable in law.9. The learned counsel next contends that Section 46 of the Act is violative of Article 19 (1) (f) of the Constitution and is not saved by Article 31A-which is not applicable. Counsel submits that under Section 46 there is no acquisition by the State of any estate or of any rights therein or the extinguishment or modification of any such rights in order to come within the saving provision of Article 31A (1) (a). According to counsel the land is transferred from the landlord and vests in the tenant by virtue of Section 46. There is therefore, no acquisition by the State of any estate or of any rights therein nor is there any extinguishment or modification of such rights in favour of the State. Section 46 and such other provisions in the Act are in furtherance of agrarian reforms which are one of the principal objects of the Act. The fact that Section in terms transfers the land from landlord to tenant and vests the ownership in the latter does not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole reason that there is no express mention of such acquisition by the State in terms. The scheme underlying the provisions may be briefly stated. The State being the paramount owner of the lands had earlier granted the land to the tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the State will have to take is to extinguish the rights of the tenure holders under the paramount owner. It is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the, landlord in the estate end conferment of the same right upon the tenant. Once that happens there is in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the tenant. There is, therefore, no substance in the contention that Article 31A is not applicable in this case to enable the appellants to challenge the provision under Article 19 (1) (f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since Article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation of Article 14 of the Constitution.
### Response:
0
### Explanation:
7. We may at once say that Section 49A is not attracted in the instant case since the section provides for ownership of land which is not transferred to the tenant under Section 46 or which is not purchased by the tenant under Section 41 or Section46 (1) provides clearly and unambiguously that notwithstanding anything contained in Chapter III (containing Ss. 38 to 57) the ownership of all lands held by tenants, which they are entitled to purchase from their landlords under any of the provisions of this Chapter, shall stand transferred to and vest in such tenants on and from April 1. 1961, from which date such tenants shall be deemed to be the full owners of such lands. The tenants, therefore, become full owners of the tenanted lands by operation of law and there is a statutory vesting of the lands in them. This legal vesting by operation of Section 46 on and from April 1. l961, cannot be divested in absence of any clear provision under the Act to that effect only by reference to a prospective provision like sub-section (14A) of Section 43 which came by an amendment much later on March 1, 1962.It is, therefore, not even necessary to consider the legal effect of the amalgam of the three Sections, namely, sub-section (14A) of Sec. 43, Section 46 and Section 49A in this appeal. We are satisfied the revenue authorities were justified in taking action under Section 46 read with Section 48 and the order cannot be challenged as unsustainable in46 and such other provisions in the Act are in furtherance of agrarian reforms which are one of the principal objects of the Act. The fact that Section in terms transfers the land from landlord to tenant and vests the ownership in the latter does not mean that there is no extinguishment of the estate or its rights in favour of the State for the sole reason that there is no express mention of such acquisition by the State in terms. The scheme underlying the provisions may be briefly stated. The State being the paramount owner of the lands had earlier granted the land to the tenure holders who are the landlords under the Act. In order to transfer the land to tenants from the landlords the first step the State will have to take is to extinguish the rights of the tenure holders under the paramount owner. It is only then that transfer of the same land to the tenants under the landlords will be possible. Section 46, in our opinion, has achieved the twin purpose of extinguishment of the right of the, landlord in the estate end conferment of the same right upon the tenant. Once that happens there is in one breath extinguishment of the right in favour of the State and the conferment of the said right in favour of the tenant. There is, therefore, no substance in the contention that Article 31A is not applicable in this case to enable the appellants to challenge the provision under Article 19 (1) (f) of the Constitution. The objection of the learned counsel is, therefore, without substance. Since Article 31A is clearly applicable, we need not deal with the objection of counsel on the score of violation of Article 14 of the Constitution.
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Devidas Rama Chari Vs. S Bharat Petroleum Corporation Limited | else, even if it is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblame worthy conduct of the person seeking relief, and the Court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. The supreme Court cited with approval what Sir barnes Peacock had to say in Lindsay petroleum Co. Vs. Kurd, ( (1874)5 PC 221), thus: "now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy. "( 12 ) AS seen from the observations of the Supreme Court, which are squarely applicable to the facts of this case, the petitioner has approached this Court with an unexplained delay of about four years and the Court is certainly not expected to assist such a petitioner who has been tardy and indolent and, who, by the passage of time has allowed respondent no. 3 to set up the petrol pump/retail outlet by investing considerable amount of money. As said before, in doing the same, respondent No. 3 has certainly changed his entire way of life and it will not be proper to displace him from the same. ( 13 ) A submission on behalf of the petitioner was also made that a petition once admitted could not be dismissed on the ground of delay and laches and in support of the submission, reliance, amongst others, was placed on the case of S. Gurmej Singh Hira singh Vs. The Election Tribunal, Gurdaspur and Ors. (AIR 1964 Punjab 337), wherein the Full Bench of Punjab and Haryana High court had held that undue delay as a circumstance disentitling the aggrieved party to invoke the Courts jurisdiction under Article 226 is obviously not a statutory rule of limitation. Further the Court had observed that indeed it is in part inspired by the consideration that the time of the Court should not be wasted by invoking its extraordinary jurisdiction after long delay. The party seeking assistance of the Court is accordingly expected to be reasonably prompt and vigilant in approaching the Court. If, therefore, the Court, after hearing the petitioner, admits the writ petition and issues a rule nisi and at the hearing after actually adjudicating upon the merits of the controversy, comes to a positive conclusion in favour of the petitioner, that may also be a factor which, to some extent, may reasonably weigh against the refusal to exercise discretion in granting relief to the aggrieved party. The controversy raised in the proceedings would have inevitably to be considered by the Court and when the matter comes up on appeal, at a later stage.( 14 ) NEEDLESS to observe that the Full bench has not laid down any broad proposition that if a petition is admitted, the same has got to be necessarily decided on merits. ( 15 ) ON behalf of the respondents, our attention has been drawn to a Judgment of the division Bench of this Court in the case of Bajaj Auto Ltd. and Ors. Vs. The Union of India and Ors. (1992 (2) Bom. C. R. 366), wherein this Court observed thus :"another argument advanced was that once a rule is issued, there is no escape for the constitutional Court than to pronounce a decision on merits. We are unable to accept that as an inviolable and inflexible proposition. A rule is likely to be issued on the basis of the prima facie evaluation of the contentions projected in a writ petition. Quite often, final hearing takes time. That is our sad experience. It may subsequently transpire that the Rule was issued wholly erroneously. This may be in evidence by a return or even demonstrated sometimes in the course of the hearing on inter-locutory relief. If the Court comes to know of the circumstances which make it realize that the mistake was committed by it in issuing the rule, it does not stand to reason that the party guilty of such misrepresentation or suppression of facts, should receive from the Constitutional Court an indulgence and luxury in the form of compulsory adjudication on the merits of the case". ( 16 ) ON behalf of the petitioner, no effort has been made to persuade us to take a contrary view to the view held by the Division bench of this Court in the case of Bajaj Auto ltd. and ors. Vs. The Union of India and ors. (supra ). We too have no reason not to follow the same. In the circumstances, the petitioners contention that once the petition is admitted, the same has got to be decide on merits, cannot be accepted. ( 17 ) IN view of the above, we are not at all inclined to interfere with the decision of the Company in allotting the said petrol pump/ retail outlet in favour of respondent No. 3. | 0[ds]In our opinion, within the same constituency there may have been different places which could be within the municipal areas as well as outside such limits and also there could have been places which were more commercially viable than others. The same could be said in relation to the saidroad. Considering the guidelines, to which reference has been made, we are of the prima facie view that the company was required toat least twice in case no suitable place was available in Shiroda. The location at Shiroda, which was advertised, has to be considered as a location within the area comprising of Village Panchayat of Shiroda, because there is a certificate from the Village Panchayat, which was produced by respondent No. 3 in support of his plea that there was no place available to set up the said petrol pump at5 ) WE are of the view that the action of the Company has got to be considered as arbitrary because the Company has not followed its own guidelines. For the sake of transparency, in public action the Company was required, even after Industry Members concurred regarding the change in location, to advertise again and call for fresh applications for dealership, since the location was admittedly changed from one Village to another and at a place which was more advantageously situated. Nevertheless, we are of the view, considering the facts of this case and gross delay and laches on the part of the petitioner, that it will be inequitable to grant any relief in favour of the petitioner as against respondent no.7 ) AS already stated, the petitioner has not at all explained the delay of almost four years in approaching this Court with this petition, which is again in the nature of a public interest litigation because it is not the case of the petitioner that he did apply for the dealership of setting up the petrol pump, when it was advertised for Shiroda Village or for that matter he was capable of arranging any land at borim Village to set up the same. The petitioner has also not stated that he was not aware that the petrol pump was commissional onat Borim. Admittedly, the petrol pump was set up at the instance of respondent No. 3 at the junction of two roads at16 ) ON behalf of the petitioner, no effort has been made to persuade us to take a contrary view to the view held by the Division bench of this Court in the case of Bajaj Auto ltd. and ors. Vs. The Union of India and ors. (supra ). We too have no reason not to follow the same. In the circumstances, the petitioners contention that once the petition is admitted, the same has got to be decide on merits, cannot be17 ) IN view of the above, we are not at all inclined to interfere with the decision of the Company in allotting the said petrol pump/ retail outlet in favour of respondent No. 3. | 0 | 3,372 | 545 | ### 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:
else, even if it is founded on the allegation of infringement of his legal right, has to necessarily depend upon unblame worthy conduct of the person seeking relief, and the Court refuses to grant the discretionary relief to such person in exercise of such power, when he approaches it with unclean hands or blameworthy conduct. The supreme Court cited with approval what Sir barnes Peacock had to say in Lindsay petroleum Co. Vs. Kurd, ( (1874)5 PC 221), thus: "now the doctrine of laches in Courts of equity is not an arbitrary or a technical doctrine. Where it would be practically unjust to give a remedy, either because the party has, by his conduct, done that which might fairly be regarded as equivalent to a waiver of it, or where by his conduct and neglect he has, though perhaps not waiving that remedy, yet put the other party in a situation, in which it would not be reasonable to place him if the remedy were afterwards to be asserted, in either of these cases, lapse of time and delay are most material. But in every case, if an argument against relief, which otherwise would be just, is founded upon mere delay, that delay of course not amounting to a bar by any statute of limitations, the validity of that defence must be tried upon principles substantially equitable. Two circumstances, always important in such cases, are, the length of the delay and the nature of the acts done during the interval, which might affect either party and cause a balance of justice or injustice in taking the one course or the other so far as it relates to the remedy. "( 12 ) AS seen from the observations of the Supreme Court, which are squarely applicable to the facts of this case, the petitioner has approached this Court with an unexplained delay of about four years and the Court is certainly not expected to assist such a petitioner who has been tardy and indolent and, who, by the passage of time has allowed respondent no. 3 to set up the petrol pump/retail outlet by investing considerable amount of money. As said before, in doing the same, respondent No. 3 has certainly changed his entire way of life and it will not be proper to displace him from the same. ( 13 ) A submission on behalf of the petitioner was also made that a petition once admitted could not be dismissed on the ground of delay and laches and in support of the submission, reliance, amongst others, was placed on the case of S. Gurmej Singh Hira singh Vs. The Election Tribunal, Gurdaspur and Ors. (AIR 1964 Punjab 337), wherein the Full Bench of Punjab and Haryana High court had held that undue delay as a circumstance disentitling the aggrieved party to invoke the Courts jurisdiction under Article 226 is obviously not a statutory rule of limitation. Further the Court had observed that indeed it is in part inspired by the consideration that the time of the Court should not be wasted by invoking its extraordinary jurisdiction after long delay. The party seeking assistance of the Court is accordingly expected to be reasonably prompt and vigilant in approaching the Court. If, therefore, the Court, after hearing the petitioner, admits the writ petition and issues a rule nisi and at the hearing after actually adjudicating upon the merits of the controversy, comes to a positive conclusion in favour of the petitioner, that may also be a factor which, to some extent, may reasonably weigh against the refusal to exercise discretion in granting relief to the aggrieved party. The controversy raised in the proceedings would have inevitably to be considered by the Court and when the matter comes up on appeal, at a later stage.( 14 ) NEEDLESS to observe that the Full bench has not laid down any broad proposition that if a petition is admitted, the same has got to be necessarily decided on merits. ( 15 ) ON behalf of the respondents, our attention has been drawn to a Judgment of the division Bench of this Court in the case of Bajaj Auto Ltd. and Ors. Vs. The Union of India and Ors. (1992 (2) Bom. C. R. 366), wherein this Court observed thus :"another argument advanced was that once a rule is issued, there is no escape for the constitutional Court than to pronounce a decision on merits. We are unable to accept that as an inviolable and inflexible proposition. A rule is likely to be issued on the basis of the prima facie evaluation of the contentions projected in a writ petition. Quite often, final hearing takes time. That is our sad experience. It may subsequently transpire that the Rule was issued wholly erroneously. This may be in evidence by a return or even demonstrated sometimes in the course of the hearing on inter-locutory relief. If the Court comes to know of the circumstances which make it realize that the mistake was committed by it in issuing the rule, it does not stand to reason that the party guilty of such misrepresentation or suppression of facts, should receive from the Constitutional Court an indulgence and luxury in the form of compulsory adjudication on the merits of the case". ( 16 ) ON behalf of the petitioner, no effort has been made to persuade us to take a contrary view to the view held by the Division bench of this Court in the case of Bajaj Auto ltd. and ors. Vs. The Union of India and ors. (supra ). We too have no reason not to follow the same. In the circumstances, the petitioners contention that once the petition is admitted, the same has got to be decide on merits, cannot be accepted. ( 17 ) IN view of the above, we are not at all inclined to interfere with the decision of the Company in allotting the said petrol pump/ retail outlet in favour of respondent No. 3.
### Response:
0
### Explanation:
In our opinion, within the same constituency there may have been different places which could be within the municipal areas as well as outside such limits and also there could have been places which were more commercially viable than others. The same could be said in relation to the saidroad. Considering the guidelines, to which reference has been made, we are of the prima facie view that the company was required toat least twice in case no suitable place was available in Shiroda. The location at Shiroda, which was advertised, has to be considered as a location within the area comprising of Village Panchayat of Shiroda, because there is a certificate from the Village Panchayat, which was produced by respondent No. 3 in support of his plea that there was no place available to set up the said petrol pump at5 ) WE are of the view that the action of the Company has got to be considered as arbitrary because the Company has not followed its own guidelines. For the sake of transparency, in public action the Company was required, even after Industry Members concurred regarding the change in location, to advertise again and call for fresh applications for dealership, since the location was admittedly changed from one Village to another and at a place which was more advantageously situated. Nevertheless, we are of the view, considering the facts of this case and gross delay and laches on the part of the petitioner, that it will be inequitable to grant any relief in favour of the petitioner as against respondent no.7 ) AS already stated, the petitioner has not at all explained the delay of almost four years in approaching this Court with this petition, which is again in the nature of a public interest litigation because it is not the case of the petitioner that he did apply for the dealership of setting up the petrol pump, when it was advertised for Shiroda Village or for that matter he was capable of arranging any land at borim Village to set up the same. The petitioner has also not stated that he was not aware that the petrol pump was commissional onat Borim. Admittedly, the petrol pump was set up at the instance of respondent No. 3 at the junction of two roads at16 ) ON behalf of the petitioner, no effort has been made to persuade us to take a contrary view to the view held by the Division bench of this Court in the case of Bajaj Auto ltd. and ors. Vs. The Union of India and ors. (supra ). We too have no reason not to follow the same. In the circumstances, the petitioners contention that once the petition is admitted, the same has got to be decide on merits, cannot be17 ) IN view of the above, we are not at all inclined to interfere with the decision of the Company in allotting the said petrol pump/ retail outlet in favour of respondent No. 3.
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Sasi Enterprises Vs. Assistant Commissioner of Income Tax | and after a notice under Section 142(1)(i) or 148 of the Act is issued calling for filing of the return of income. Proviso, therefore, envisages the filing of even belated return before the detection or discovery of the failure and issuance of notices under Section 142 or 148 of the Act. 25. We may in this respect also refer to sub-section (4) to Section 139 wherein the legislature has used an expression “whichever is earlier”. Both Section 139(1) and Sub-Section (1) of Section 142 are referred to in sub-section (4) to Section 139, which specify time limit. Therefore, the expression “whichever is earlier” has to be read with the time if allowed under sub-section (1) to Section 139 or within the time allowed under notice issued under sub-section (1) of Section 142, whichever is earlier. So far as the present case is concerned, it is already noticed that the assessee had not filed the return either within the time allowed under sub-section (1) to Section 139 or within the time allowed under notices issued under sub-section (1) to Section 142. 26. We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act. Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-. Such an assessee may file belated return before the detection and avail the benefit of the proviso. Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.27. We may indicate that the above reasoning has the support of the Judgment of this Court in Prakash Nath Khanna (supra). When we apply the above principles to the facts of the case in hand, the contention of the learned senior counsel for the appellant that there has not been any willful failure to file their return cannot be accepted and on facts, offence under Section 276CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court.28. We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 that “the language employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain and unambiguous”. If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.29. We are also of the view that the declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the ‘statutory return under section 139(1) of the Act. The firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144 would not nullify the liability of the firm to file the return as per Section 139(1) of the Act. Appellants’ contention that since they had in their individual returns indicated that the firm’s accounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.30. Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns. Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act. | 0[ds]26. We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act. Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-. Such an assessee may file belated return before the detection and avail the benefit of the proviso. Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.27. We may indicate that the above reasoning has the support of the Judgment of this Court in Prakash Nath Khanna (supra). When we apply the above principles to the facts of the case in hand, the contention of the learned senior counsel for the appellant that there has not been any willful failure to file their return cannot be accepted and on facts, offence under Section 276CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court.28. We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 thatlanguage employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain andIf it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.29. We are also of the view that the declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the ‘statutory return under section 139(1) of the Act. The firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144 would not nullify the liability of the firm to file the return as per Section 139(1) of the Act.contention that since they had in their individual returns indicated that theaccounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.30. Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns. Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act. | 0 | 6,507 | 893 | ### 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:
and after a notice under Section 142(1)(i) or 148 of the Act is issued calling for filing of the return of income. Proviso, therefore, envisages the filing of even belated return before the detection or discovery of the failure and issuance of notices under Section 142 or 148 of the Act. 25. We may in this respect also refer to sub-section (4) to Section 139 wherein the legislature has used an expression “whichever is earlier”. Both Section 139(1) and Sub-Section (1) of Section 142 are referred to in sub-section (4) to Section 139, which specify time limit. Therefore, the expression “whichever is earlier” has to be read with the time if allowed under sub-section (1) to Section 139 or within the time allowed under notice issued under sub-section (1) of Section 142, whichever is earlier. So far as the present case is concerned, it is already noticed that the assessee had not filed the return either within the time allowed under sub-section (1) to Section 139 or within the time allowed under notices issued under sub-section (1) to Section 142. 26. We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act. Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-. Such an assessee may file belated return before the detection and avail the benefit of the proviso. Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.27. We may indicate that the above reasoning has the support of the Judgment of this Court in Prakash Nath Khanna (supra). When we apply the above principles to the facts of the case in hand, the contention of the learned senior counsel for the appellant that there has not been any willful failure to file their return cannot be accepted and on facts, offence under Section 276CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court.28. We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 that “the language employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain and unambiguous”. If it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.29. We are also of the view that the declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the ‘statutory return under section 139(1) of the Act. The firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144 would not nullify the liability of the firm to file the return as per Section 139(1) of the Act. Appellants’ contention that since they had in their individual returns indicated that the firm’s accounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.30. Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns. Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act.
### Response:
0
### Explanation:
26. We have indicated that on failure to file the returns by the appellants, income tax department made a best judgment assessment under Section 144 of the Act and later show cause notices were issued for initiating prosecution under Section 276CC of the Act. Proviso to Section 276CC nowhere states that the offence under Section 276CC has not been committed by the categories of assesses who fall within the scope of that proviso, but it is stated that such a person shall not be proceeded against. In other words, it only provides that under specific circumstances subject to the proviso, prosecution may not be initiated. An assessee who comes within clause 2(b) to the proviso, no doubt has also committed the offence under Section 276CC, but is exempted from prosecution since the tax falls below Rs.3,000/-. Such an assessee may file belated return before the detection and avail the benefit of the proviso. Proviso cannot control the main section, it only confers some benefit to certain categories of assesses. In short, the offence under Section 276CC is attracted on failure to comply with the provisions of Section 139(1) or failure to respond to the notice issued under Section 142 or Section 148 of the Act within the time limit specified therein.27. We may indicate that the above reasoning has the support of the Judgment of this Court in Prakash Nath Khanna (supra). When we apply the above principles to the facts of the case in hand, the contention of the learned senior counsel for the appellant that there has not been any willful failure to file their return cannot be accepted and on facts, offence under Section 276CC of the Act has been made out in all these appeals and the rejection of the application for the discharge calls for no interference by this Court.28. We also find no basis in the contention of the learned senior counsel for the appellant that pendency of the appellate proceedings is a relevant factor for not initiating prosecution proceedings under Section 276CC of the Act. Section 276CC contemplates that an offence is committed on the non-filing of the return and it is totally unrelated to the pendency of assessment proceedings except for second part of the offence for determination of the sentence of the offence, the department may resort to best judgment assessment or otherwise to past years to determine the extent of the breach. The language of Section 276CC, in our view, is clear so also the legislative intention. It is trite law that as already held by this Court in B. Permanand v. Mohan Koikal (2011) 4 SCC 266 thatlanguage employed in a statute is the determinative factor of the legislative intent. It is well settled principle of law that a court cannot read anything into a statutory provision which is plain andIf it was the intention of the legislature to hold up the prosecution proceedings till the assessment proceedings are completed by way of appeal or otherwise the same would have been provided in Section 276CC itself. Therefore, the contention of the learned senior counsel for the appellant that no prosecution could be initiated till the culmination of assessment proceedings, especially in a case where the appellant had not filed the return as per Section 139(1) of the Act or following the notices issued under Section 142 or Section 148 does not arise.29. We are also of the view that the declaration or statement made in the individual returns by partners that the accounts of the firm are not finalized, hence no return has been filed by the firm, will not absolve the firm in filing the ‘statutory return under section 139(1) of the Act. The firm is independently required to file the return and merely because there has been a best judgment assessment under Section 144 would not nullify the liability of the firm to file the return as per Section 139(1) of the Act.contention that since they had in their individual returns indicated that theaccounts had not been finalized, hence no returns were filed, would mean that failure to file return was not willful, cannot be accepted.30. Section 278E deals with the presumption as to culpable mental state, which was inserted by the Taxation Laws (Amendment and Miscellaneous Provisions) Act, 1986. The question is on whom the burden lies, either on the prosecution or the assessee, under Section 278E to prove whether the assessee has or has not committed willful default in filing the returns. Court in a prosecution of offence, like Section 276CC has to presume the existence of mens rea and it is for the accused to prove the contrary and that too beyond reasonable doubt. Resultantly, the appellants have to prove the circumstances which prevented them from filing the returns as per Section 139(1) or in response to notices under Sections 142 and 148 of the Act.
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SK JALALUDDIN & OTHERS Vs. THE STATE OF WEST BENGAL AND OTHERS | last opportunity to the defaulting members (petitioners/applicants herein) to clear the dues, failing which they would be expelled from the Society. Since the petitioners failed to deposit the required amount within the specified time, in terms of Rule 133(1) of the West Bengal Co- operative Societies Rules, 2011, the Board of Directors of the Housing Society, by resolution dated 27.05.2015, expelled the petitioners from its membership. The decision to expel the petitioners from the membership of the Housing Society was duly communicated to them. The said decision was also communicated to the Registrar, Co-operative Societies, West Bengal on 07.07.2015. The Registrar, Co-operative Societies, after giving opportunity of hearing to the petitioners, directed the Housing Society to prepare up-to-date demand of each of the defaulting members and the petitioners were granted time up to 27.10.2016 to pay the balance amount, failing which the decision of the Board of Directors of the Housing Society for expulsion of the petitioners from the Housing Society would come into effect. 6. Challenging the said order of Registrar, Co-operative Societies, the petitioners filed a Revision before the Government of West Bengal. The Principal Secretary to the Government of West Bengal, after giving opportunity of hearing to the petitioners, dismissed the Revision vide its order dated 20.01.2017, and directed the Housing Society to raise up-to-date demand from all the six petitioners by 30.01.2017 and the petitioners were directed to make payment by 28.02.2017, failing which the decision of the Board of Directors, expelling the petitioners, would come into effect. 7. The petitioners then challenged the said order of the State Government by filing Writ Petition before the High Court, which was dismissed vide order dated 17.01.2018. The High Court, in its detailed judgment, has recorded that in a meeting of the Housing Society held on 01.12.2014, the issue of cost of construction was discussed and the petitioners, who were present in the said meeting, upon perusing the relevant documents of the Society, agreed to pay the balance sum of money. The findings recorded by the authorities below were affirmed by the High Court. It was also noted that the remaining 42 members of the Society had already deposited the entire enhanced amount of Rs. 24 lakhs, while it was only the petitioners, who had not made any deposit beyond the initial deposit of Rs. 3.86 lakhs each, and that there was no objection raised by majority of the members of the Society to the enhanced cost of the flats, and because of the petitioners not depositing the balance amount, the other members of the Society were facing inconvenience. The High Court also recorded that counsel for the appellants/writ petitioners submitted that his clients were ready to pay the remaining balance amount. While dismissing the Writ Petition, the High Court directed the Housing Society to furnish the outstanding dues of the petitioners within 15 days and as a last opportunity, gave the petitioners further one months time to deposit the balance amount, failing which, the petitioners would be restored back to the position as it existed prior to the decision of Housing Society expelling them as its members. 8. Challenging the said judgment of the High Court, the petitioners filed Special Leave Petition No. 6300 of 2018 before this Court, which has been dismissed on 28.03.2018 by the order already quoted above. 9. After nearly six months of the dismissal of the Special Leave Petition, this miscellaneous application, with the prayers as quoted above, has been filed on 26.11.2018. 10. The contention of the petitioners in this application is that the cost of the flats was arbitrarily enhanced and that though, after the order of the High Court, some of the petitioners had deposited certain amount (not the demanded amount) directly in the bank account of the Housing Society, but the same was returned to them. All the petitioners were also refunded Rs. 3.86 lakhs each, initially deposited by them. It was contended on behalf of the petitioners that the Housing Society did not issue no-objection certificate (NOC) for obtaining loans from the bank and hence, the balance amount could not be paid by them. 11. Per Contra, the respondent No. 4- Housing Society has contended that within 15 days of the order dated 28.03.2018 passed by this Court, the petitioners sent a letter dated 04.04.2018 to the Housing Society requesting it to accord permission for bank loan, so as to enable them to pay the balance amount. It was also contended that there was no condition in the order passed by this Court on 28.03.2018 requiring the petitioners to pay the balance amount only after obtaining the bank loans, and as such, since the balance amount was not paid by any of the six petitioners within the time granted by this Court, their right to allotment of flats had been forfeited. It was also submitted that the six flats have already been allotted to six other members, who all have deposited the requisite amount and have taken possession of their respective flats. 12. From the aforesaid facts, it is clear that besides the initial amount of Rs. 3.86 lakhs, the petitioners did not deposit any further amount and kept disputing the demands raised by the Housing Society. The order expelling the petitioners from the membership of the Society, was passed way back in May, 2015, which order was affirmed by the Registrar, Co-operative Societies, West Bengal as well as the Principal Secretary to the State Government, and the Writ Petition filed by the petitioners was also dismissed. On each occasion, the petitioners were granted time to deposit the balance amount, which they did not comply. They have not even complied with the order passed by this Court on 28.03.2018. After the expiry of time granted by this Court to the petitioners to deposit the balance amount, the order of the Society expelling the petitioners had come into effect and thereafter the six flats have already been allotted to six different persons, who have deposited the requisite amounts. | 1[ds]12. From the aforesaid facts, it is clear that besides the initial amount of Rs. 3.86 lakhs, the petitioners did not deposit any further amount and kept disputing the demands raised by the Housing Society. The order expelling the petitioners from the membership of the Society, was passed way back in May, 2015, which order was affirmed by the Registrar, Co-operative Societies, West Bengal as well as the Principal Secretary to the State Government, and the Writ Petition filed by the petitioners was also dismissed. On each occasion, the petitioners were granted time to deposit the balance amount, which they did not comply. They have not even complied with the order passed by this Court on 28.03.2018. After the expiry of time granted by this Court to the petitioners to deposit the balance amount, the order of the Society expelling the petitioners had come into effect and thereafter the six flats have already been allotted to six different persons, who have deposited the requisite amounts. | 1 | 1,686 | 188 | ### 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:
last opportunity to the defaulting members (petitioners/applicants herein) to clear the dues, failing which they would be expelled from the Society. Since the petitioners failed to deposit the required amount within the specified time, in terms of Rule 133(1) of the West Bengal Co- operative Societies Rules, 2011, the Board of Directors of the Housing Society, by resolution dated 27.05.2015, expelled the petitioners from its membership. The decision to expel the petitioners from the membership of the Housing Society was duly communicated to them. The said decision was also communicated to the Registrar, Co-operative Societies, West Bengal on 07.07.2015. The Registrar, Co-operative Societies, after giving opportunity of hearing to the petitioners, directed the Housing Society to prepare up-to-date demand of each of the defaulting members and the petitioners were granted time up to 27.10.2016 to pay the balance amount, failing which the decision of the Board of Directors of the Housing Society for expulsion of the petitioners from the Housing Society would come into effect. 6. Challenging the said order of Registrar, Co-operative Societies, the petitioners filed a Revision before the Government of West Bengal. The Principal Secretary to the Government of West Bengal, after giving opportunity of hearing to the petitioners, dismissed the Revision vide its order dated 20.01.2017, and directed the Housing Society to raise up-to-date demand from all the six petitioners by 30.01.2017 and the petitioners were directed to make payment by 28.02.2017, failing which the decision of the Board of Directors, expelling the petitioners, would come into effect. 7. The petitioners then challenged the said order of the State Government by filing Writ Petition before the High Court, which was dismissed vide order dated 17.01.2018. The High Court, in its detailed judgment, has recorded that in a meeting of the Housing Society held on 01.12.2014, the issue of cost of construction was discussed and the petitioners, who were present in the said meeting, upon perusing the relevant documents of the Society, agreed to pay the balance sum of money. The findings recorded by the authorities below were affirmed by the High Court. It was also noted that the remaining 42 members of the Society had already deposited the entire enhanced amount of Rs. 24 lakhs, while it was only the petitioners, who had not made any deposit beyond the initial deposit of Rs. 3.86 lakhs each, and that there was no objection raised by majority of the members of the Society to the enhanced cost of the flats, and because of the petitioners not depositing the balance amount, the other members of the Society were facing inconvenience. The High Court also recorded that counsel for the appellants/writ petitioners submitted that his clients were ready to pay the remaining balance amount. While dismissing the Writ Petition, the High Court directed the Housing Society to furnish the outstanding dues of the petitioners within 15 days and as a last opportunity, gave the petitioners further one months time to deposit the balance amount, failing which, the petitioners would be restored back to the position as it existed prior to the decision of Housing Society expelling them as its members. 8. Challenging the said judgment of the High Court, the petitioners filed Special Leave Petition No. 6300 of 2018 before this Court, which has been dismissed on 28.03.2018 by the order already quoted above. 9. After nearly six months of the dismissal of the Special Leave Petition, this miscellaneous application, with the prayers as quoted above, has been filed on 26.11.2018. 10. The contention of the petitioners in this application is that the cost of the flats was arbitrarily enhanced and that though, after the order of the High Court, some of the petitioners had deposited certain amount (not the demanded amount) directly in the bank account of the Housing Society, but the same was returned to them. All the petitioners were also refunded Rs. 3.86 lakhs each, initially deposited by them. It was contended on behalf of the petitioners that the Housing Society did not issue no-objection certificate (NOC) for obtaining loans from the bank and hence, the balance amount could not be paid by them. 11. Per Contra, the respondent No. 4- Housing Society has contended that within 15 days of the order dated 28.03.2018 passed by this Court, the petitioners sent a letter dated 04.04.2018 to the Housing Society requesting it to accord permission for bank loan, so as to enable them to pay the balance amount. It was also contended that there was no condition in the order passed by this Court on 28.03.2018 requiring the petitioners to pay the balance amount only after obtaining the bank loans, and as such, since the balance amount was not paid by any of the six petitioners within the time granted by this Court, their right to allotment of flats had been forfeited. It was also submitted that the six flats have already been allotted to six other members, who all have deposited the requisite amount and have taken possession of their respective flats. 12. From the aforesaid facts, it is clear that besides the initial amount of Rs. 3.86 lakhs, the petitioners did not deposit any further amount and kept disputing the demands raised by the Housing Society. The order expelling the petitioners from the membership of the Society, was passed way back in May, 2015, which order was affirmed by the Registrar, Co-operative Societies, West Bengal as well as the Principal Secretary to the State Government, and the Writ Petition filed by the petitioners was also dismissed. On each occasion, the petitioners were granted time to deposit the balance amount, which they did not comply. They have not even complied with the order passed by this Court on 28.03.2018. After the expiry of time granted by this Court to the petitioners to deposit the balance amount, the order of the Society expelling the petitioners had come into effect and thereafter the six flats have already been allotted to six different persons, who have deposited the requisite amounts.
### Response:
1
### Explanation:
12. From the aforesaid facts, it is clear that besides the initial amount of Rs. 3.86 lakhs, the petitioners did not deposit any further amount and kept disputing the demands raised by the Housing Society. The order expelling the petitioners from the membership of the Society, was passed way back in May, 2015, which order was affirmed by the Registrar, Co-operative Societies, West Bengal as well as the Principal Secretary to the State Government, and the Writ Petition filed by the petitioners was also dismissed. On each occasion, the petitioners were granted time to deposit the balance amount, which they did not comply. They have not even complied with the order passed by this Court on 28.03.2018. After the expiry of time granted by this Court to the petitioners to deposit the balance amount, the order of the Society expelling the petitioners had come into effect and thereafter the six flats have already been allotted to six different persons, who have deposited the requisite amounts.
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M/s. Johnson and Johnson (India) Limited Vs. Its Workmen | KHANNA, J.1. The services of B. N. Bhasin were terminated by the appellant company with effect from May 1, 1966. Reference was thereafter made to the Labour Court on the point as to whether the termination of the services of Bhasin was wrongful and unjustified and if so, to what relief he was entitled. The Labour Court as per award dated September 9, 1969 held that the termination of service of Bhasin was wrongful and unjustified and he was entitled to full backwages and continuity of service. The appellant company thereafter come up in appeal to this Court by special leave.2. At the hearing of the appeal, there has been a settlement between the parties and it has been agreed that instead of Bhasin being reinstated by the appellant company he be paid Rs. 10, 000 in full and final settlement of his claim. This would be without prejudice to the contention advanced on behalf of the appellant company as to whether salesman is a workman. A sum of Rs. 8, 000 is stated to have been already deposited by the appellant company. Bhasin respondent would be entitled to withdraw the same. The appellant shall pay the balance of Rs. 2, 000 to Bhasin within one week from today. | 1[ds]2. At the hearing of the appeal, there has been a settlement between the parties and it has been agreed that instead of Bhasin being reinstated by the appellant company he be paid Rs. 10, 000 in full and final settlement of his claim. This would be without prejudice to the contention advanced on behalf of the appellant company as to whether salesman is a workman. A sum of Rs. 8, 000 is stated to have been already deposited by the appellant company. Bhasin respondent would be entitled to withdraw the same. The appellant shall pay the balance of Rs. 2, 000 to Bhasin within one week from today. | 1 | 230 | 126 | ### 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:
KHANNA, J.1. The services of B. N. Bhasin were terminated by the appellant company with effect from May 1, 1966. Reference was thereafter made to the Labour Court on the point as to whether the termination of the services of Bhasin was wrongful and unjustified and if so, to what relief he was entitled. The Labour Court as per award dated September 9, 1969 held that the termination of service of Bhasin was wrongful and unjustified and he was entitled to full backwages and continuity of service. The appellant company thereafter come up in appeal to this Court by special leave.2. At the hearing of the appeal, there has been a settlement between the parties and it has been agreed that instead of Bhasin being reinstated by the appellant company he be paid Rs. 10, 000 in full and final settlement of his claim. This would be without prejudice to the contention advanced on behalf of the appellant company as to whether salesman is a workman. A sum of Rs. 8, 000 is stated to have been already deposited by the appellant company. Bhasin respondent would be entitled to withdraw the same. The appellant shall pay the balance of Rs. 2, 000 to Bhasin within one week from today.
### Response:
1
### Explanation:
2. At the hearing of the appeal, there has been a settlement between the parties and it has been agreed that instead of Bhasin being reinstated by the appellant company he be paid Rs. 10, 000 in full and final settlement of his claim. This would be without prejudice to the contention advanced on behalf of the appellant company as to whether salesman is a workman. A sum of Rs. 8, 000 is stated to have been already deposited by the appellant company. Bhasin respondent would be entitled to withdraw the same. The appellant shall pay the balance of Rs. 2, 000 to Bhasin within one week from today.
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State Of Orissa Vs. United India Insurance Co. Ltd.Represented By Divisional Of | has been defined in S. 2(a) to mean a contract of marine insurance as defined by S. 3, "Marine Adventure" has been defined under S. 2(d) to include any adventure where any insurable property is exposed to maritime perils. "Maritime perils" has been defined in S. 2(e) and means the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, battery and any other perils which are either of the like kind or may be designated by the policy. Section 3 of the Act envisages that : "A contract of marine insurance is an agreement whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say, the losses incidental to marine adventure." Section 4 of the Act is a composite policy as regards mixed sea and land risks. It contemplates thus : "4(1) A contract of marine insurance may, by its express terms, or by usage or trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage." Sub-sec. (2) and the explanation thereto are not relevant for the purpose of this case, hence omitted. 5. The question, therefore, is whether the insurance coverage under Ex.A-22 includes non-supply of 12 bulldozers contracted by Vijaya Commercial Corporation, which had undertaken to supply the same to the appellant. Though it is contended that the insurance liability starts only from destination Calcutta Port to any place in Orissa, we cannot accept the same for the reason that the contract of insurance under Ex. A-22 is a composite one. It reads as under : "Risk to attach only when the goods hereby insured are inspected and certified as sound by a representative of the Insurer before dispatch from Calcutta.""The said company promises and agrees that the insurance aforesaid shall commence from the time when the goods and Merchandise shall laden on board the said ship or Vessel Craft or Boat as above. And continue until the said Goods and Merchandise be discharged and safely landed at as above." 6. It is also seen, as extracted by the High Court, that the insurance was from port to port, in other words, from the port in Yugoslavia to the port in Calcutta. Thus, it could be seen that for the insurance to be operative, it is a transit policy and when non-supply during the transit occurs, the liability is undertaken by the Insurance Company. But before that undertaking came to be effective, a notice was issued by the Insurance Company cancelling the same. One of the clauses in the contract is that "this contract is subject to 7 days notice of cancellation by either side in writing." Thus, it is a mutual right to be exercised by the parties to cancel the contract duly entered into. 7. The High Court has recorded the finding that the Branch Manager of insurance company exceeded his authority as an agent by underwriting in the policy the guarantee for the non-supply of bulldozers. The principal is not bound by such an undertaking, by operation of S. 237 of the Contract Act, which reads thus : "When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agents authority." 8. It is found, as a fact, that he had no authority to undertake such liability by subsequent incorporation into the policy of such underwriting and, therefore, by operation of S. 237 of the Contract Act, the Insurance Company was not bound by such act of the manager. 9. A contract of Indemnity is a contract by which one party promises to save the other from loss caused to him by the conduct of any other person as contemplated in S. 124 of the Indian Contract Act. But indemnity, as applicable to marine insurance, must not be an indemnity, as contemplated by the Indian Contract Act, as the loss in such a contract is covered by the contract itself and such loss is not caused to the assured by the conduct of the insurer nor by the conduct of any other person. Brett, L.J., observed, with regard to this indemnity, thus : "this contract means that the assured, in case of loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified. That is the fundamental principle of insurance, and if ever a proposition is brought forward which is at variance with it, that is to say, which either will prevent the assured from obtaining a full indemnity, or which will give to the assured more than a full indemnity, that proposition must certainly be wrong." vide Marine Insurance by Banerji. 10. In view of the fact that the Branch Manager was not authorised to cover the risk of the loss on account of non-supply, the agent, namely, the Insurance company is not liable for any damages. But in view of the fact that the contract had been duly terminated under the insurance itself, the declaration sought, viz., for that the contract was duly cancelled, is clearly within the power and legal competence. This controversy is covered by the judgment of a Constitution Bench of this Court in General Assurance Co. v. Chandumull Jain, 1966(3) SCR 500. Therein, this Court had held thus : "This condition gives mutual rights to the parties to cancel the policy at any time. To the assurer it gives a right to cancel the policy at will." 11. Therefore, the High Court has not committed any error of law warranting interference. 12. | 0[ds]Thus, it could be seen that for the insurance to be operative, it is a transit policy and when non-supply during the transit occurs, the liability is undertaken by the Insurance Company. But before that undertaking came to be effective, a notice was issued by the Insurance Company cancelling the same. One of the clauses in the contract is that "this contract is subject to 7 days notice of cancellation by either side in writing." Thus, it is a mutual right to be exercised by the parties to cancel the contract duly entered into.In view of the fact that the Branch Manager was not authorised to cover the risk of the loss on account of non-supply, the agent, namely, the Insurance company is not liable for any damages. But in view of the fact that the contract had been duly terminated under the insurance itself, the declaration sought, viz., for that the contract was duly cancelled, is clearly within the power and legal competence. This controversy is covered by the judgment of a Constitution Bench of this Court in General Assurance Co. v. Chandumull Jain, 1966(3) SCR 500. Therein, this Court had held thuscondition gives mutual rights to the parties to cancel the policy at any time. To the assurer it gives a right to cancel the policy atthe High Court has not committed any error of law warranting interference. | 0 | 1,569 | 261 | ### 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:
has been defined in S. 2(a) to mean a contract of marine insurance as defined by S. 3, "Marine Adventure" has been defined under S. 2(d) to include any adventure where any insurable property is exposed to maritime perils. "Maritime perils" has been defined in S. 2(e) and means the perils consequent on, or incidental to, the navigation of the sea, that is to say, perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, battery and any other perils which are either of the like kind or may be designated by the policy. Section 3 of the Act envisages that : "A contract of marine insurance is an agreement whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say, the losses incidental to marine adventure." Section 4 of the Act is a composite policy as regards mixed sea and land risks. It contemplates thus : "4(1) A contract of marine insurance may, by its express terms, or by usage or trade, be extended so as to protect the assured against losses on inland waters or on any land risk which may be incidental to any sea voyage." Sub-sec. (2) and the explanation thereto are not relevant for the purpose of this case, hence omitted. 5. The question, therefore, is whether the insurance coverage under Ex.A-22 includes non-supply of 12 bulldozers contracted by Vijaya Commercial Corporation, which had undertaken to supply the same to the appellant. Though it is contended that the insurance liability starts only from destination Calcutta Port to any place in Orissa, we cannot accept the same for the reason that the contract of insurance under Ex. A-22 is a composite one. It reads as under : "Risk to attach only when the goods hereby insured are inspected and certified as sound by a representative of the Insurer before dispatch from Calcutta.""The said company promises and agrees that the insurance aforesaid shall commence from the time when the goods and Merchandise shall laden on board the said ship or Vessel Craft or Boat as above. And continue until the said Goods and Merchandise be discharged and safely landed at as above." 6. It is also seen, as extracted by the High Court, that the insurance was from port to port, in other words, from the port in Yugoslavia to the port in Calcutta. Thus, it could be seen that for the insurance to be operative, it is a transit policy and when non-supply during the transit occurs, the liability is undertaken by the Insurance Company. But before that undertaking came to be effective, a notice was issued by the Insurance Company cancelling the same. One of the clauses in the contract is that "this contract is subject to 7 days notice of cancellation by either side in writing." Thus, it is a mutual right to be exercised by the parties to cancel the contract duly entered into. 7. The High Court has recorded the finding that the Branch Manager of insurance company exceeded his authority as an agent by underwriting in the policy the guarantee for the non-supply of bulldozers. The principal is not bound by such an undertaking, by operation of S. 237 of the Contract Act, which reads thus : "When an agent has, without authority, done acts or incurred obligations to third persons on behalf of his principal, the principal is bound by such acts or obligations if he has by his words or conduct induced such third persons to believe that such acts and obligations were within the scope of the agents authority." 8. It is found, as a fact, that he had no authority to undertake such liability by subsequent incorporation into the policy of such underwriting and, therefore, by operation of S. 237 of the Contract Act, the Insurance Company was not bound by such act of the manager. 9. A contract of Indemnity is a contract by which one party promises to save the other from loss caused to him by the conduct of any other person as contemplated in S. 124 of the Indian Contract Act. But indemnity, as applicable to marine insurance, must not be an indemnity, as contemplated by the Indian Contract Act, as the loss in such a contract is covered by the contract itself and such loss is not caused to the assured by the conduct of the insurer nor by the conduct of any other person. Brett, L.J., observed, with regard to this indemnity, thus : "this contract means that the assured, in case of loss against which the policy has been made, shall be fully indemnified, but shall never be more than fully indemnified. That is the fundamental principle of insurance, and if ever a proposition is brought forward which is at variance with it, that is to say, which either will prevent the assured from obtaining a full indemnity, or which will give to the assured more than a full indemnity, that proposition must certainly be wrong." vide Marine Insurance by Banerji. 10. In view of the fact that the Branch Manager was not authorised to cover the risk of the loss on account of non-supply, the agent, namely, the Insurance company is not liable for any damages. But in view of the fact that the contract had been duly terminated under the insurance itself, the declaration sought, viz., for that the contract was duly cancelled, is clearly within the power and legal competence. This controversy is covered by the judgment of a Constitution Bench of this Court in General Assurance Co. v. Chandumull Jain, 1966(3) SCR 500. Therein, this Court had held thus : "This condition gives mutual rights to the parties to cancel the policy at any time. To the assurer it gives a right to cancel the policy at will." 11. Therefore, the High Court has not committed any error of law warranting interference. 12.
### Response:
0
### Explanation:
Thus, it could be seen that for the insurance to be operative, it is a transit policy and when non-supply during the transit occurs, the liability is undertaken by the Insurance Company. But before that undertaking came to be effective, a notice was issued by the Insurance Company cancelling the same. One of the clauses in the contract is that "this contract is subject to 7 days notice of cancellation by either side in writing." Thus, it is a mutual right to be exercised by the parties to cancel the contract duly entered into.In view of the fact that the Branch Manager was not authorised to cover the risk of the loss on account of non-supply, the agent, namely, the Insurance company is not liable for any damages. But in view of the fact that the contract had been duly terminated under the insurance itself, the declaration sought, viz., for that the contract was duly cancelled, is clearly within the power and legal competence. This controversy is covered by the judgment of a Constitution Bench of this Court in General Assurance Co. v. Chandumull Jain, 1966(3) SCR 500. Therein, this Court had held thuscondition gives mutual rights to the parties to cancel the policy at any time. To the assurer it gives a right to cancel the policy atthe High Court has not committed any error of law warranting interference.
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State Of Madhya Pradesh Vs. Kaluram | goods. The State was also entitled to prevent the goods from being removed without payment of the instalments due. The expression "security" in S. 141 is not used in any technical sense; it includes all rights which the creditor had against the property at the date of the contract. The surety is entitled on payment of the debt or performance of all that he is liable for, to the benefits of the rights of the creditors against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in S. 141, discharged to the extent of the value of the security lost or parted with.12. The State had a charge over the goods sold as well as the right to remain in possession till payment of the instalments. When the goods were removed by Jagatram that security was lost and to the extent of the value of the security lost the surety stood discharged. In the present case the State has not produced the accounts furnished under R. 16 by the contractor relating to the quantity of goods removed by Jagatram. We must in the circumstances hold that the entire quality contracted to be sold to Jagatram had been removed, and the surety is, because the State has parted with the security which it held, discharged from liability to pay the amount payable under the terms of the contract12-A. In Wulff and Billing v. Jay, (1872) 7 QB 756 Hannen, J., stated the law thus :" * * * I take it to be 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 fulfil 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 Tudors L. C., 4th Edn. 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 not, 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."Subject to certain variations, which are not material for the matter under discussion, S. 141 of the 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.13. The Forest Officers of the State of Madhya Pradesh parted with the goods before receiving payment of the amount due by the contractor Jagatram. Thereby the charge in favour of the State was seriously impaired and the statutory power to sell the goods for non-payment of the amount remaining due became, for all practical purposes, ineffective. Again under the terms of the contract the Forest authorities had the right to prevent removal of goods sold until the prices was paid: that right was also lost. The right conferred by S. 83 of the Forest Act and under the terms of the contract to prevent removal and right to sell goods for non-payment of the price, coupled with the charge on the goods constituted the security of the State, and that security was lost because the Forest Officers permitted removal of the goods by the contractor.14. It was urged however on behalf of the State that mere inaction on the part of the forest authorities does not amount to parting with the security. But the terms of the statute do not apply only to cases in which by positive action on the part of the creditor the security is parted with. Even if the security is lost by the creditor, the surety is discharged. In any event the facts in the present case make it abundantly clear that it was on account of the conduct of the forest authorities that the security was lost. The goods sold were under the control of the Forest Officers, when they were in the coupe and even when they were in the depot of the contractor. The goods could be removed on the production of a pass from the coupe, and even after the goods were removed, unless they were examined and checked they were not at the disposal of the contractor. It is not pleaded by the State that the trees sold were not checked and examined at the depot of the contractor. Knowing that the goods were removed without payment of the instalments, if the Forest authorities checked and examined the goods and took no action for recovery of the amount payable, and did not enforce the charge, it would be difficult to say that there was mere inaction on the part of the forest authorities. | 0[ds]Beside the contractual right which is conferred upon the State by Rule 8 to stop removal of goods in value exceeding the amount already paid by the contractor, where the consideration is payable in instalments the statute has imposed a charge upon the goods sold, inter alia, for the price thereof, and has authorised the Forest Officer to take possession of the goods until such amount is paid. If the amount is not paid when due, the Forest Officer may sell the produce by public auction. The State Government has therefore under the terms of the contract and by virtue of the statute, even though the property in the goods has passed to the contractor, the right to stop removal of the goods and take possession thereof till the amount due is paid and to sell the goods if the amount is not paid when due; the State has also the power to prohibit removal of the goods when the value of the forest produce removed by the contractor exceeds the amount of instalments already paid, to check and examine the goods and to terminate the contract in case of default in payment of the amount due and to take possession of the goods either in the contract area or in the depots of the contractor.10. The contract between Jagatram and the State was in respect of "felled trees" and the area and denomination of the coupe were set out. The trees agreed to be sold being in a deliverable state, by virtue of S. 20 of the Sale of Goods Act, the property in the goods sold passed on the production of the "coupe boundary certificate". It is true that because of the diverse covenants contained in the contract and the provisions of the Rules which formed part of the contract, certain restrictions were imposed upon the contractor. Rule 8 authorised the forest authorities to stop removal of the goods sold if it was found that the contractor had removed goods of value exceeding the amount of instalments already paid. Again the contractor was required to take the goods to the depots and to get the same checked and examined. But on that ground it cannot be said that the contractor did not become the owner of the goods when the "coupe boundary certificate" was produced. The "coupe boundary certificate" is not on the record, and we are unable to hold that any goods were removed or permitted to be removed without the production of the coupe boundary certificate. That is not the case of the State and we will not be justified in so assuming. The terms of Rr. 29 and 33 also abundantly support the view that on the production of the "coupe boundary certificate" the contractor becomes the owner of the goods. Under Cl. (2) of R. 29 when a contract is terminated for reasons mentioned in Cl. (1) all forest produce remaining within the contract area or at the depots specified under U. 1.3 becomes the absolute property of the Government. It is implicit in the rule that till the eventuality contemplated by R. 29(1), property in the forest produce is in the contractor. The terms of R. 33 (2) which authorise the forest contractor to assign any forest produce also support that inference. The right to assign the forest produce not removed from the contract area predicates title to the forest produce. The argument of the State that the property in the goods had not passed to the forest contractor till they were removed, and on that account the statutory charge under S. 83 of the Forest Act did not attach to the goods sold, has therefore no force. As soon as the contract was entered into and the coupe boundary certificate was produced, and we assume in this case that it was so produced, the property in the goods passed to Jagatram. But for the contract price there was a first charge on such produce in favour of the State of Madhya Pradesh under S. 83(1).The Divisional Forest Officer had authority to stop removal of those goods until the amount of instalments payable by the contractor was paid and even to sell the goods for recovery of the amount which had fallen due. The forest authorities however allowed Jagatram to remove the goods sold before the instalments due on December 1, 1954 and thereafter wereState had as already observed, a first charge over the goods. The State was also entitled to prevent the goods from being removed without payment of the instalments due. The expression "security" in S. 141 is not used in any technical sense; it includes all rights which the creditor had against the property at the date of the contract. The surety is entitled on payment of the debt or performance of all that he is liable for, to the benefits of the rights of the creditors against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in S. 141, discharged to the extent of the value of the security lost or parted with.12. The State had a charge over the goods sold as well as the right to remain in possession till payment of the instalments. When the goods were removed by Jagatram that security was lost and to the extent of the value of the security lost the surety stood discharged. In the present case the State has not produced the accounts furnished under R. 16 by the contractor relating to the quantity of goods removed by Jagatram. We must in the circumstances hold that the entire quality contracted to be sold to Jagatram had been removed, and the surety is, because the State has parted with the security which it held, discharged from liability to pay the amount payable under the terms of thethe terms of the statute do not apply only to cases in which by positive action on the part of the creditor the security is parted with. Even if the security is lost by the creditor, the surety is discharged. In any event the facts in the present case make it abundantly clear that it was on account of the conduct of the forest authorities that the security was lost. The goods sold were under the control of the Forest Officers, when they were in the coupe and even when they were in the depot of the contractor. The goods could be removed on the production of a pass from the coupe, and even after the goods were removed, unless they were examined and checked they were not at the disposal of the contractor. It is not pleaded by the State that the trees sold were not checked and examined at the depot of the contractor. Knowing that the goods were removed without payment of the instalments, if the Forest authorities checked and examined the goods and took no action for recovery of the amount payable, and did not enforce the charge, it would be difficult to say that there was mere inaction on the part of the forest authorities. | 0 | 3,819 | 1,345 | ### 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:
goods. The State was also entitled to prevent the goods from being removed without payment of the instalments due. The expression "security" in S. 141 is not used in any technical sense; it includes all rights which the creditor had against the property at the date of the contract. The surety is entitled on payment of the debt or performance of all that he is liable for, to the benefits of the rights of the creditors against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in S. 141, discharged to the extent of the value of the security lost or parted with.12. The State had a charge over the goods sold as well as the right to remain in possession till payment of the instalments. When the goods were removed by Jagatram that security was lost and to the extent of the value of the security lost the surety stood discharged. In the present case the State has not produced the accounts furnished under R. 16 by the contractor relating to the quantity of goods removed by Jagatram. We must in the circumstances hold that the entire quality contracted to be sold to Jagatram had been removed, and the surety is, because the State has parted with the security which it held, discharged from liability to pay the amount payable under the terms of the contract12-A. In Wulff and Billing v. Jay, (1872) 7 QB 756 Hannen, J., stated the law thus :" * * * I take it to be 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 fulfil 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 Tudors L. C., 4th Edn. 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 not, 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."Subject to certain variations, which are not material for the matter under discussion, S. 141 of the 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.13. The Forest Officers of the State of Madhya Pradesh parted with the goods before receiving payment of the amount due by the contractor Jagatram. Thereby the charge in favour of the State was seriously impaired and the statutory power to sell the goods for non-payment of the amount remaining due became, for all practical purposes, ineffective. Again under the terms of the contract the Forest authorities had the right to prevent removal of goods sold until the prices was paid: that right was also lost. The right conferred by S. 83 of the Forest Act and under the terms of the contract to prevent removal and right to sell goods for non-payment of the price, coupled with the charge on the goods constituted the security of the State, and that security was lost because the Forest Officers permitted removal of the goods by the contractor.14. It was urged however on behalf of the State that mere inaction on the part of the forest authorities does not amount to parting with the security. But the terms of the statute do not apply only to cases in which by positive action on the part of the creditor the security is parted with. Even if the security is lost by the creditor, the surety is discharged. In any event the facts in the present case make it abundantly clear that it was on account of the conduct of the forest authorities that the security was lost. The goods sold were under the control of the Forest Officers, when they were in the coupe and even when they were in the depot of the contractor. The goods could be removed on the production of a pass from the coupe, and even after the goods were removed, unless they were examined and checked they were not at the disposal of the contractor. It is not pleaded by the State that the trees sold were not checked and examined at the depot of the contractor. Knowing that the goods were removed without payment of the instalments, if the Forest authorities checked and examined the goods and took no action for recovery of the amount payable, and did not enforce the charge, it would be difficult to say that there was mere inaction on the part of the forest authorities.
### Response:
0
### Explanation:
trees agreed to be sold being in a deliverable state, by virtue of S. 20 of the Sale of Goods Act, the property in the goods sold passed on the production of the "coupe boundary certificate". It is true that because of the diverse covenants contained in the contract and the provisions of the Rules which formed part of the contract, certain restrictions were imposed upon the contractor. Rule 8 authorised the forest authorities to stop removal of the goods sold if it was found that the contractor had removed goods of value exceeding the amount of instalments already paid. Again the contractor was required to take the goods to the depots and to get the same checked and examined. But on that ground it cannot be said that the contractor did not become the owner of the goods when the "coupe boundary certificate" was produced. The "coupe boundary certificate" is not on the record, and we are unable to hold that any goods were removed or permitted to be removed without the production of the coupe boundary certificate. That is not the case of the State and we will not be justified in so assuming. The terms of Rr. 29 and 33 also abundantly support the view that on the production of the "coupe boundary certificate" the contractor becomes the owner of the goods. Under Cl. (2) of R. 29 when a contract is terminated for reasons mentioned in Cl. (1) all forest produce remaining within the contract area or at the depots specified under U. 1.3 becomes the absolute property of the Government. It is implicit in the rule that till the eventuality contemplated by R. 29(1), property in the forest produce is in the contractor. The terms of R. 33 (2) which authorise the forest contractor to assign any forest produce also support that inference. The right to assign the forest produce not removed from the contract area predicates title to the forest produce. The argument of the State that the property in the goods had not passed to the forest contractor till they were removed, and on that account the statutory charge under S. 83 of the Forest Act did not attach to the goods sold, has therefore no force. As soon as the contract was entered into and the coupe boundary certificate was produced, and we assume in this case that it was so produced, the property in the goods passed to Jagatram. But for the contract price there was a first charge on such produce in favour of the State of Madhya Pradesh under S. 83(1).The Divisional Forest Officer had authority to stop removal of those goods until the amount of instalments payable by the contractor was paid and even to sell the goods for recovery of the amount which had fallen due. The forest authorities however allowed Jagatram to remove the goods sold before the instalments due on December 1, 1954 and thereafter wereState had as already observed, a first charge over the goods. The State was also entitled to prevent the goods from being removed without payment of the instalments due. The expression "security" in S. 141 is not used in any technical sense; it includes all rights which the creditor had against the property at the date of the contract. The surety is entitled on payment of the debt or performance of all that he is liable for, to the benefits of the rights of the creditors against the principal debtor which arise out of the transaction which gives rise to the right or liability: he is therefore on payment of the amount due by the principal debtor entitled to be put in the same position in which the creditor stood in relation to the principal debtor. If the creditor has lost or has parted with the security without the consent of the surety, the latter is, by the express provision contained in S. 141, discharged to the extent of the value of the security lost or parted with.12. The State had a charge over the goods sold as well as the right to remain in possession till payment of the instalments. When the goods were removed by Jagatram that security was lost and to the extent of the value of the security lost the surety stood discharged. In the present case the State has not produced the accounts furnished under R. 16 by the contractor relating to the quantity of goods removed by Jagatram. We must in the circumstances hold that the entire quality contracted to be sold to Jagatram had been removed, and the surety is, because the State has parted with the security which it held, discharged from liability to pay the amount payable under the terms of thethe terms of the statute do not apply only to cases in which by positive action on the part of the creditor the security is parted with. Even if the security is lost by the creditor, the surety is discharged. In any event the facts in the present case make it abundantly clear that it was on account of the conduct of the forest authorities that the security was lost. The goods sold were under the control of the Forest Officers, when they were in the coupe and even when they were in the depot of the contractor. The goods could be removed on the production of a pass from the coupe, and even after the goods were removed, unless they were examined and checked they were not at the disposal of the contractor. It is not pleaded by the State that the trees sold were not checked and examined at the depot of the contractor. Knowing that the goods were removed without payment of the instalments, if the Forest authorities checked and examined the goods and took no action for recovery of the amount payable, and did not enforce the charge, it would be difficult to say that there was mere inaction on the part of the forest authorities.
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Pashupati Nath Sukul and Others Vs. Nem Chandra Jain and Others | Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged with costs.10. We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.I | 1[ds]Article 191 of the Constitution prescribes the disqualifications for membership of the Legislative Assembly or Legislative Council of a State. On the incurring of any such disqualification a member of a Legislative Assembly or a Legislative Council ceases to be a member thereof. Article 193 of the Constitution provides for the penalty for sitting and voting before making oath or affirmation under Article 188 of the Constitution or when not qualified or when disqualified the penalty being in respect of each day five hundred rupees to be recovered as a debt due to the State. It does not say that if an elected member of a Legislative Assembly sits and votes before taking oath as prescribed by Article 188 of the Constitution he shall automatically cease to be a member of the House, even though it is possible that his seat maybe declared as vacant under Article 190(4) of the Constitution if for sixty days he is absent from all meetings of the House without its permission. Now the question is whether the making of oath or affirmation is a condition precedent for being eligible to a ct as a proposer of a valid nomination for election to the Rajya Sabha. The rule contained in Article 193 of the Constitution, as stated earlier, is that a member elected to a Legislative Assembly cannot sit and vote in the House before making oath or affirmation. The words `sitting and voting in Article 193 of the Constitution imply the summoning of the House under Article 174 of the Constitution by the Governor to meet at such time and place as he thinks fit and the holding of the meeting of the House pursuant to the said summons or an adjourned meeting. An elected member incurs the penalty for contravening Article 193 of the Constitution only when he sits and votes at such a meeting of the House. Invariably there is an interval of time between the constitution of a House after a general election as provided by section 73 of the Act and the summoning of the first meeting of the House. During that interval an elected member of the Assembly whose name appears in the notification issued under section 73 of the Act is entitled to all the privileges, salaries and allowances of a member of the Legislative Assembly, one of them being the right to function as an elector at an election held for filling a seat in the Rajya Sabha. That is the effect of section 73 of the Act which says that on the publication of the notification under it the House shall be deemed to have been constituted. The election in question does not form a part of the Legislative proceedings o f the House carried on at its meeting. Nor the votes cast at such an election is a vote given in the House on any issue arising before the House. The Speaker has no control over the election. The election is held by the Returning Officer appointed for the purpose. As mentioned earlier, under section 33 of the Act the nomination paper has to be presented to the Returning Officer between the hours of eleven oclock in the forenoon and three oclock in the afternoon before the last day notified for making nominations under section 30 of the Act. Then all further steps such as scrutiny of nominations and withdrawal of nominations take place before the Returning Officer. Rule 69 of the Conduct of Elections Rules, 1961 provides that at an election by Assembly members where a poll becomes necessary, the Returning Officer for such election shall, as soon as may be after the last date for the withdrawal of candidatures, send to each elector a notice informing him of the date, time and place fixed for polling. Part VI of the Conduct of Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged withare of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1. Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout. | 1 | 6,621 | 1,792 | ### 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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Elections Rules, 1961 which contains Rule 69 and Part VII thereof deal with the procedure to be followed at an election by assembly members. Rule 85 of the Conduct of Elections Rules, 1961 provides that as soon as may be after a candidate has been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged with costs.10. We are of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.I
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been declared to be elected, the returning officer shall grant to such candidate a certificate of election in Form 24 and obtain from the candidate an acknowledgement of its receipt duly signed by him and immediately send the acknowledgement by registered post to the Secretary of the Council of States or as the case may be, the Secretary of the Legislative Council. All the steps taken in the course of the election thus fall outside the proceedings that take place at a meeting of the House.We may here refer to the decision of the Calcutta High Court in Bhupendra Nath Basu v. Ranjit Singh.(1) The facts of that case were these. An election was held on February 14, 1913 to the Legislative Council of the Governor-General from the constituency consisting of the non-official additional members of the Bengal Legislative Council each having two votes to fill two seats in the Legislative Council of the Governor-General. There were at that time thirty four non-official additional members but two of them had not taken the oath of allegiance at the time of the election as prescribed by the Bengal Council Regulation VII. At the election there were four candidates-the plaintiff Bhupendra Nath Basu, the 1st defendant Maharaja Ranjit Singh, the 2nd defendant Surendra Nath Banerjee and Nawab Badruddin Haidar. As a result of the poll the second defendant got 22 votes, the first defendant got 18 votes, the plaintiff 17 and Nawab Badruddin Haidar 11 votes. Accordingly defendants 1 and 2 were declared elected to fill the two seats. The plaintiff after being unsuccessful in his petition to the Governor-General filed a suit before the High Court questioning the validity of the election. He prayed that the votes should be recounted after excluding the votes cast by the two members who had not taken the oath of allegiance. Regulation VII referred to above provided that every person elected nominated under the regulations should before taking his seat at a meeting of the Council make an oath or affirmation of his allegiance to the Crown and Regulation VIII provided that if such a person "fails to make the oath or affirmation prescribed by Regulation VII within such time as the Governor-in-Council may consider reasonable, the Governor, shall by notification in the local Official Gazette declare the election or nomination to be void or his seat to be vacate". Such a declaration had not been made on the date of the election.The contention of the plaintiff was rejected by the High Court in the following terms:"Moreover, I am not satisfied that the view of the Government as to the taking of the oath of allegiance is not a correct one. Doubtless the English cases that were referred to, the case of the Mayor of Penryn (1 Strange 582) and The King v. Swyer (1830) 10 B . &C. 486) have decided that a person is admitted to a public office, which requires the oath of allegiance, only when the oath of allegiance is taken. That does not get rid of the difficulty that arises from these Regulations. These Regulations constitute an electoral College of elected members of the Local Council to elect two persons to be members of the Council of His Excellency the Governor-General. I am not satisfied on the Regulations that the learned Advocate-General has called my attention to, that when the electors have the right of giving their votes by means of registered letter, for the purpose of being members of electoral college and for that purpose only, that the mere fact of election to the local Council was not sufficient to constitute a person so elected a member of the electoral college. It is only for the purpose of exercising the legislative function s conferred by the Regulations and by the Act that the oath of allegiance is required. Moreover, as the Advocate-General has pointed out, the mere fact of omission to take an oath of allegiance does not ipso facto cause a member to vacate his seat; under Regulation VIII of the Bengal Council Regulations, the discretion is given to the Governor as to his declaring a seat to be vacant if the person elected fails to take an oath of allegiance. In my opinion, in this case the Rule fails and must be discharged, and discharged withare of the view that an elected member who has not taken oath but whose name appears in the notification published under section 73 of t he Act can take part in all non-legislative activities of an elected member. The right of voting at an election to the Rajya Sabha can also be exercised by him. In this case since it is not disputed that the name of the proposer had been included before the date on which he proposed the name of the appellant as a candidate in the notification published under section 73 of the Act and in the electoral roll maintained under section 152 of the Act, it should be held that there was no infirmity in the nomination. For the same reason even the electoral roll which contained the names of elected members appearing in the notification issued under section 73 of the Act cannot be held to be illegal. That is how even respondent No . 1 appears to have understood the true legal position as he was also proposed as a candidate by an elector who had not yet made the oath or affirmation. The second contention also fails. No other contention was pressed before us. We are therefore, of the view that the findings recorded by the High Court on the basis of which the election of the appellant to the Rajya Sabha was set aside are erroneous.In the result we allow the above appeals, set aside the judgment of the High Court and dismiss the election petition filled by respondent No. 1. Having regard to the novelty of the question raised in this case the parties are directed to bear their own costs throughout.
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M.S. BHATI Vs. NATIONAL INSURANCE COMPANY LTD | right to drive the said vehicle under the hold of driving license….? 9. Learned counsel appearing on behalf of the insurer states, on instructions, that the third party claims which were awarded by the MACT have been duly satisfied.10. It has been submitted on behalf of the appellant that the definition of the expression ?light motor vehicle? in Section 2(21) of the Motor Vehicles Act, 1988 covers a transport vehicle of which the gross weight does not exceed 7500 kilograms. It was submitted that the license of the deceased driver to drive a light motor vehicle was valid between 16 August 1994 and 18 May 2013 and would cover a transport vehicle whose gross weight was less than 7,500 kgs. Reliance has been placed on a decision of three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. (2017) 14 SCC 663. 11. Learned counsel appearing on behalf of the insurer submitted that the District Forum correctly rejected the claim, since even according to the appellant, the license for a transport vehicle of the deceased driver had been renewed at 2.42 p.m. on 11 April 2008, after the accident took place in which the driver had died on the spot. Hence, it was submitted that the renewal of the transport license in favour of a dead individual was not a valid renewal in the eyes of law and as a matter of fact, according to the insurer even the period of license had expired on 16 January 2008.12. Learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan (supra) has been reserved for reconsideration by a larger Bench in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. (Civil Appeal No 841 of 2018) by a two Judge Bench of this Court on 3 May 2018.13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field.14. In Mukund Dewangan (supra), a three Judge Bench had been constituted on a reference for resolving the issue as to whether a driver who has a license to drive a light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle.15. The conflict of decision between two Judge Benches of this Court was resolved in Mukund Dewangan (supra). The conclusions in the decision of this Court read thus:?60.1 ‘Light motor vehicle? as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994.60.2 A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ?unladen weight? of which does not exceed 7500 kg. and holder of a driving licence to drive class of ?light motor vehicle? as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or roadroller, the ?unladen weight? of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.60.3 The effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of section 10(2) which contained ?medium goods vehicle? in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g)and ?heavy passenger motor vehicle? in section 10(2)(h) with expression ‘transport vehicle? as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2) (d) and section 2(41) of the Act i.e. light motor vehicle.60.4 The effect of amendment of Form 4 by insertion of ?transport vehicle? is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ?light motor vehicle? continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.? 16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression ?light motor vehicle? as follows:-?(21) ?Light Motor Vehicle? means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms;? 17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21). | 1[ds]13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21). | 1 | 1,656 | 201 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
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right to drive the said vehicle under the hold of driving license….? 9. Learned counsel appearing on behalf of the insurer states, on instructions, that the third party claims which were awarded by the MACT have been duly satisfied.10. It has been submitted on behalf of the appellant that the definition of the expression ?light motor vehicle? in Section 2(21) of the Motor Vehicles Act, 1988 covers a transport vehicle of which the gross weight does not exceed 7500 kilograms. It was submitted that the license of the deceased driver to drive a light motor vehicle was valid between 16 August 1994 and 18 May 2013 and would cover a transport vehicle whose gross weight was less than 7,500 kgs. Reliance has been placed on a decision of three Judge Bench of this Court in Mukund Dewangan vs. Oriental Insurance Co. Ltd. (2017) 14 SCC 663. 11. Learned counsel appearing on behalf of the insurer submitted that the District Forum correctly rejected the claim, since even according to the appellant, the license for a transport vehicle of the deceased driver had been renewed at 2.42 p.m. on 11 April 2008, after the accident took place in which the driver had died on the spot. Hence, it was submitted that the renewal of the transport license in favour of a dead individual was not a valid renewal in the eyes of law and as a matter of fact, according to the insurer even the period of license had expired on 16 January 2008.12. Learned counsel further submitted on the alternative plea that the decision in Mukund Dewangan (supra) has been reserved for reconsideration by a larger Bench in M/s. Bajaj Alliance General Insurance Co. Ltd. vs. Rambha Devi & Ors. (Civil Appeal No 841 of 2018) by a two Judge Bench of this Court on 3 May 2018.13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field.14. In Mukund Dewangan (supra), a three Judge Bench had been constituted on a reference for resolving the issue as to whether a driver who has a license to drive a light motor vehicle and is driving a transport vehicle of that class is required additionally to obtain an endorsement to drive a transport vehicle.15. The conflict of decision between two Judge Benches of this Court was resolved in Mukund Dewangan (supra). The conclusions in the decision of this Court read thus:?60.1 ‘Light motor vehicle? as defined in section 2(21) of the Act would include a transport vehicle as per the weight prescribed in section 2(21) read with section 2(15) and 2(48). Such transport vehicles are not excluded from the definition of the light motor vehicle by virtue of Amendment Act No.54 of 1994.60.2 A transport vehicle and omnibus, the gross vehicle weight of either of which does not exceed 7500 kg. would be a light motor vehicle and also motor car or tractor or a road roller, ?unladen weight? of which does not exceed 7500 kg. and holder of a driving licence to drive class of ?light motor vehicle? as provided in section 10(2)(d) is competent to drive a transport vehicle or omnibus, the gross vehicle weight of which does not exceed 7500 kg. or a motor car or tractor or roadroller, the ?unladen weight? of which does not exceed 7500 kg. That is to say, no separate endorsement on the licence is required to drive a transport vehicle of light motor vehicle class as enumerated above. A licence issued under section 10(2)(d) continues to be valid after Amendment Act 54/1994 and 28.3.2001 in the form.60.3 The effect of the amendment made by virtue of Act No.54 of 1994 w.e.f. 14-11-1994 while substituting clauses (e) to (h) of section 10(2) which contained ?medium goods vehicle? in section 10(2)(e), medium passenger motor vehicle in section 10(2)(f), heavy goods vehicle in section 10(2)(g)and ?heavy passenger motor vehicle? in section 10(2)(h) with expression ‘transport vehicle? as substituted in section 10(2)(e) related only to the aforesaid substituted classes only. It does not exclude transport vehicle, from the purview of section 10(2) (d) and section 2(41) of the Act i.e. light motor vehicle.60.4 The effect of amendment of Form 4 by insertion of ?transport vehicle? is related only to the categories which were substituted in the year 1994 and the procedure to obtain driving licence for transport vehicle of class of ?light motor vehicle? continues to be the same as it was and has not been changed and there is no requirement to obtain separate endorsement to drive transport vehicle, and if a driver is holding licence to drive light motor vehicle, he can drive transport vehicle of such class without any endorsement to that effect.? 16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident. Section 2(21) of the Motor Vehicles Act, 1988 defines the expression ?light motor vehicle? as follows:-?(21) ?Light Motor Vehicle? means a transport vehicle or omnibus the gross vehicle weight of either of which or a motor car or tractor or roadroller the unladen weight of any of which, does not exceed 7,500 kilograms;? 17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21).
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13. The law which has been laid down by a three Judge Bench of this Court in Mukund Dewangan (supra) binds this Court. As a matter of judicial discipline, we are duty bound to follow that decision which continues to hold the field16. The fact that the driver had a license to drive a light motor vehicle which was valid on the date of the accident is not in dispute. The MACT returned a finding that the LMV license was valid from 16 August 1994 to 18 May 2013. The insurer has not urged anything in the course of the present proceedings to dispute this finding of fact. We have therefore proceeded on the basis that the driver had a valid LMV license on the date of the accident17. The above provision has been interpreted by the three Judge Bench of this Court in Mukund Dewangan(supra). The conclusions have been extracted earlier. It is not disputed by the insurer in the course of these proceedings that the gross weight of the vehicle was in conformity with Section 2(21).
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M/S. Indian Dairy Machinery Co. Ltd Vs. Asst. Commnr. Of Commercial Taxes | Act which has been introduced by the Karnataka Amendment Act 5 of 2002, with effect from 1.4.2002 reads as under: "Nothing contained in sub-section (6) shall apply to a dealer who purchases or receives goods from outside the State for the purpose of using such goods in the execution of works contract" 8. The legislature by introducing the above amendment to sub-Section (7) of Section 17 of the Act has restricted the benefit of composition amount for a dealer liable to tax under Section 5-B of the Act. By this amended provision, the Legislature mandates that a dealer who purchases or receives goods from outside the State for the purpose of using such goods in the execution of works contract is not eligible for benefit of composition amount for the works contract executed by him in that year in the State in respect of works specified in the Sixth Schedule to the Act. 9. Rule 8-B of the Karnataka Sales Tax Rules, 1957 (for short the `Rules) provides the procedure for composition of tax in the case of dealers executing works contract. Sub-rule (1) of Rule 8-B of the Rules envisages that the assessee/dealer shall submit an application in Form 8-AA to the assessing authority each year seeking composition benefit within One hundred and twenty days from the date of commencement of the assessment year or of the business, if he has commenced the business during the course of the year. 10. Sub-Rule (2) of Rule 8-B of the Rules mandates that the Assessing Authority after receipt of such application from the dealer/assessee, and after verifying the same, may permit the dealer, subject to the conditions specified in Sub-rule (1), to pay in lieu of the amount of tax payable by him during the year an amount by way of composition as provided in sub-section (6) of Section 17 of the Act. 11. Clause (ii) of sub-rule (2) of Rule 8-B of the Rules envisages that the Assessing Authority shall give permission for composition within thirty days from the date of receipt of the application by the dealer/assesses under Sub-rule (1) of Rule 8-B of the Rules. 12. The High Court dismissed the Revision Petition holding that sub-section (7) of Section 17 has clear application. The stand taken before the Tribunal and the High Court was re-iterated in these appeals. 13. Learned counsel for the respondent-State on the other hand supported the impugned judgment. 14. It is to be noted that if the dealer wanted the benefit of sub-section (6) of Section 17, it was required to submit an application within one hundred twenty days from the date of commencement of the assessment year. The amended provision of sub-section (7) of Section 17 came into effect from 1.4.2002. The amended provision clearly excludes the dealer from the benefit of sub-section (6) of Section 17 of the Act if he purchases or receives goods from outside the State for the purposes of using such goods in the execution of the works contract. If for any reason, the assessee had intended to opt for composition of tax under Section 17 (6) of the Act, necessarily he had to submit the application within one hundred and twenty days from the date of commencement of such year before the assessing authority to accept in lieu of tax payable under Section 5-B of the Act on the total value of the works contract being executed by him. The key words under Section 17 (6) of the Act are the tax payable during the year by way of composition an amount on the total consideration for the works executed by the contractor in that year in the year in the State. Option to be exercised for composition benefit is not dependent on the dates of the agreements entered into by the parties for execution of the works contract Under Rule 8B(1) of the Rules, the dealer/assessee is required to submit the application seeking composition benefit for each assessment year within the time prescribed from the date of commencement of such year or of the business, if he has commenced the business during the course of the year. That again means, it is irrelevant, when the parties had entered into an agreement for the execution of works contract in the State. As already noticed, the relevant assessment year in question is 2002-2003 (ending on 31.3.2003) and the assessee if it elected to compound the tax for this year, it was required to submit the application as provided under rule 8-B (1) of the rules. The amended provisions of sub-section (7) of Section 17 were given effect to from 1.4.2002. In view of the restriction imposed under the amended provision, the assessing authority could not have permitted the appellant company to elect to pay the tax under Section 17(6) of the Act, since admittedly the appellant received the goods by way of stock transfers from outside the State for the purpose of using such goods in the execution of works contract. Therefore, the first question of law raised by the appellant has been rightly answered against the assessee. 15. The language used in sub-section (7) of Section 17 is very clear. It is to the effect that if a dealer purchases or receives goods from outside the State for execution of works contract within the State it is not entitled to the benefit of composition in terms of sub-section (6) of Section17 and undisputedly, the appellant has received the goods by way of stock transfer. In view of the language employed in the amended provision, the appellant was clearly disentitled from composition for availing the benefit under sub-section (6) of Section 17. The expression “receives” would encompass receipt in any manner. Receipt by branch transfer is covered by the said expression. The High Court was, therefore, justified in dismissing the Revision Petition. We find no scope for taking a different view in view of the clear language of sub-section (7) of Section 17 as amended w.e.f. 1.4.2002. 16. | 0[ds]the dealer wanted the benefit of sub-section (6) of Section 17, it was required to submit an application within one hundred twenty days from the date of commencement of the assessment year. The amended provision of sub-section (7) of Section 17 came into effect from 1.4.2002. The amended provision clearly excludes the dealer from the benefit of sub-section (6) of Section 17 of the Act if he purchases or receives goods from outside the State for the purposes of using such goods in the execution of the works contract. If for any reason, the assessee had intended to opt for composition of tax under Section 17 (6) of the Act, necessarily he had to submit the application within one hundred and twenty days from the date of commencement of such year before the assessing authority to accept in lieu of tax payable under Section 5-B of the Act on the total value of the works contract being executed by him. The key words under Section 17 (6) of the Act are the tax payable during the year by way of composition an amount on the total consideration for the works executed by the contractor in that year in the year in the State. Option to be exercised for composition benefit is not dependent on the dates of the agreements entered into by the parties for execution of the works contract Under Rule 8B(1) of the Rules, the dealer/assessee is required to submit the application seeking composition benefit for each assessment year within the time prescribed from the date of commencement of such year or of the business, if he has commenced the business during the course of the year. That again means, it is irrelevant, when the parties had entered into an agreement for the execution of works contract in the State. As already noticed, the relevant assessment year in question is 2002-2003 (ending on 31.3.2003) and the assessee if it elected to compound the tax for this year, it was required to submit the application as provided under rule 8-B (1) of the rules. The amended provisions of sub-section (7) of Section 17 were given effect to from 1.4.2002. In view of the restriction imposed under the amended provision, the assessing authority could not have permitted the appellant company to elect to pay the tax under Section 17(6) of the Act, since admittedly the appellant received the goods by way of stock transfers from outside the State for the purpose of using such goods in the execution of works contract. Therefore, the first question of law raised by the appellant has been rightly answered against thelanguage used in sub-section (7) of Section 17 is very clear. It is to the effect that if a dealer purchases or receives goods from outside the State for execution of works contract within the State it is not entitled to the benefit of composition in terms of sub-section (6) of Section17 and undisputedly, the appellant has received the goods by way of stock transfer. In view of the language employed in the amended provision, the appellant was clearly disentitled from composition for availing the benefit under sub-section (6) of Section 17. The expressionwould encompass receipt in any manner. Receipt by branch transfer is covered by the said expression. The High Court was, therefore, justified in dismissing the Revision Petition. We find no scope for taking a different view in view of the clear language of sub-section (7) of Section 17 as amended w.e.f. 1.4.2002. | 0 | 1,618 | 649 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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Act which has been introduced by the Karnataka Amendment Act 5 of 2002, with effect from 1.4.2002 reads as under: "Nothing contained in sub-section (6) shall apply to a dealer who purchases or receives goods from outside the State for the purpose of using such goods in the execution of works contract" 8. The legislature by introducing the above amendment to sub-Section (7) of Section 17 of the Act has restricted the benefit of composition amount for a dealer liable to tax under Section 5-B of the Act. By this amended provision, the Legislature mandates that a dealer who purchases or receives goods from outside the State for the purpose of using such goods in the execution of works contract is not eligible for benefit of composition amount for the works contract executed by him in that year in the State in respect of works specified in the Sixth Schedule to the Act. 9. Rule 8-B of the Karnataka Sales Tax Rules, 1957 (for short the `Rules) provides the procedure for composition of tax in the case of dealers executing works contract. Sub-rule (1) of Rule 8-B of the Rules envisages that the assessee/dealer shall submit an application in Form 8-AA to the assessing authority each year seeking composition benefit within One hundred and twenty days from the date of commencement of the assessment year or of the business, if he has commenced the business during the course of the year. 10. Sub-Rule (2) of Rule 8-B of the Rules mandates that the Assessing Authority after receipt of such application from the dealer/assessee, and after verifying the same, may permit the dealer, subject to the conditions specified in Sub-rule (1), to pay in lieu of the amount of tax payable by him during the year an amount by way of composition as provided in sub-section (6) of Section 17 of the Act. 11. Clause (ii) of sub-rule (2) of Rule 8-B of the Rules envisages that the Assessing Authority shall give permission for composition within thirty days from the date of receipt of the application by the dealer/assesses under Sub-rule (1) of Rule 8-B of the Rules. 12. The High Court dismissed the Revision Petition holding that sub-section (7) of Section 17 has clear application. The stand taken before the Tribunal and the High Court was re-iterated in these appeals. 13. Learned counsel for the respondent-State on the other hand supported the impugned judgment. 14. It is to be noted that if the dealer wanted the benefit of sub-section (6) of Section 17, it was required to submit an application within one hundred twenty days from the date of commencement of the assessment year. The amended provision of sub-section (7) of Section 17 came into effect from 1.4.2002. The amended provision clearly excludes the dealer from the benefit of sub-section (6) of Section 17 of the Act if he purchases or receives goods from outside the State for the purposes of using such goods in the execution of the works contract. If for any reason, the assessee had intended to opt for composition of tax under Section 17 (6) of the Act, necessarily he had to submit the application within one hundred and twenty days from the date of commencement of such year before the assessing authority to accept in lieu of tax payable under Section 5-B of the Act on the total value of the works contract being executed by him. The key words under Section 17 (6) of the Act are the tax payable during the year by way of composition an amount on the total consideration for the works executed by the contractor in that year in the year in the State. Option to be exercised for composition benefit is not dependent on the dates of the agreements entered into by the parties for execution of the works contract Under Rule 8B(1) of the Rules, the dealer/assessee is required to submit the application seeking composition benefit for each assessment year within the time prescribed from the date of commencement of such year or of the business, if he has commenced the business during the course of the year. That again means, it is irrelevant, when the parties had entered into an agreement for the execution of works contract in the State. As already noticed, the relevant assessment year in question is 2002-2003 (ending on 31.3.2003) and the assessee if it elected to compound the tax for this year, it was required to submit the application as provided under rule 8-B (1) of the rules. The amended provisions of sub-section (7) of Section 17 were given effect to from 1.4.2002. In view of the restriction imposed under the amended provision, the assessing authority could not have permitted the appellant company to elect to pay the tax under Section 17(6) of the Act, since admittedly the appellant received the goods by way of stock transfers from outside the State for the purpose of using such goods in the execution of works contract. Therefore, the first question of law raised by the appellant has been rightly answered against the assessee. 15. The language used in sub-section (7) of Section 17 is very clear. It is to the effect that if a dealer purchases or receives goods from outside the State for execution of works contract within the State it is not entitled to the benefit of composition in terms of sub-section (6) of Section17 and undisputedly, the appellant has received the goods by way of stock transfer. In view of the language employed in the amended provision, the appellant was clearly disentitled from composition for availing the benefit under sub-section (6) of Section 17. The expression “receives” would encompass receipt in any manner. Receipt by branch transfer is covered by the said expression. The High Court was, therefore, justified in dismissing the Revision Petition. We find no scope for taking a different view in view of the clear language of sub-section (7) of Section 17 as amended w.e.f. 1.4.2002. 16.
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the dealer wanted the benefit of sub-section (6) of Section 17, it was required to submit an application within one hundred twenty days from the date of commencement of the assessment year. The amended provision of sub-section (7) of Section 17 came into effect from 1.4.2002. The amended provision clearly excludes the dealer from the benefit of sub-section (6) of Section 17 of the Act if he purchases or receives goods from outside the State for the purposes of using such goods in the execution of the works contract. If for any reason, the assessee had intended to opt for composition of tax under Section 17 (6) of the Act, necessarily he had to submit the application within one hundred and twenty days from the date of commencement of such year before the assessing authority to accept in lieu of tax payable under Section 5-B of the Act on the total value of the works contract being executed by him. The key words under Section 17 (6) of the Act are the tax payable during the year by way of composition an amount on the total consideration for the works executed by the contractor in that year in the year in the State. Option to be exercised for composition benefit is not dependent on the dates of the agreements entered into by the parties for execution of the works contract Under Rule 8B(1) of the Rules, the dealer/assessee is required to submit the application seeking composition benefit for each assessment year within the time prescribed from the date of commencement of such year or of the business, if he has commenced the business during the course of the year. That again means, it is irrelevant, when the parties had entered into an agreement for the execution of works contract in the State. As already noticed, the relevant assessment year in question is 2002-2003 (ending on 31.3.2003) and the assessee if it elected to compound the tax for this year, it was required to submit the application as provided under rule 8-B (1) of the rules. The amended provisions of sub-section (7) of Section 17 were given effect to from 1.4.2002. In view of the restriction imposed under the amended provision, the assessing authority could not have permitted the appellant company to elect to pay the tax under Section 17(6) of the Act, since admittedly the appellant received the goods by way of stock transfers from outside the State for the purpose of using such goods in the execution of works contract. Therefore, the first question of law raised by the appellant has been rightly answered against thelanguage used in sub-section (7) of Section 17 is very clear. It is to the effect that if a dealer purchases or receives goods from outside the State for execution of works contract within the State it is not entitled to the benefit of composition in terms of sub-section (6) of Section17 and undisputedly, the appellant has received the goods by way of stock transfer. In view of the language employed in the amended provision, the appellant was clearly disentitled from composition for availing the benefit under sub-section (6) of Section 17. The expressionwould encompass receipt in any manner. Receipt by branch transfer is covered by the said expression. The High Court was, therefore, justified in dismissing the Revision Petition. We find no scope for taking a different view in view of the clear language of sub-section (7) of Section 17 as amended w.e.f. 1.4.2002.
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Hindustan Lever Ltd Vs. B.N. Dongre | the wage scales of comparable concern i. e. TOMCO and in that respect statement furnished by Shri Menon, Advocate for the Union, appear to be correct. Hence, I agree with a modified revision of wage scales, as demanded by the workmen." * 31. The learned counsel for the Company took serious exception to the upward revision of the scales above those recommended by the Dongre Award. His objection runs thus : The workers were not aggrieved by the revised wage-structure granted under the Dongre Award and had stated so in no uncertain terms in their writ petitions in the High Court in the following words : "The petitioner says that the petitioner is not challenging the entirety of the Award, but is limiting the attack on the Award, insofar as it relates to (a) Dearness Allowances, (b) Classification, (c) Automatic Promotion and Stagnation Increment, (d) Housing Loan and (e) Provident Fund." * This averment is not denied. 32. It was the Company which had challenged the revised wage-structure prepared under the Dongre Award. The learned Single Judge spurned the Companys challenge. The Division Bench found it necessary to remit the matter to the Tribunal for reconsidering the question regarding revision of pay scales as in its view the Dongre Award had considered the revision necessary as a package formula since it had placed a control on dearness allowances, which control the Division Bench had lifted. Counsel, therefore, vehemently contended that there was no question of a further upward revision beyond what was allowed under the Dongre Award. Counsel submitted that the Deshpande Award whereunder higher pay scales have been granted is wholly unsustainable. We see merit in this line of reasoning.33. The learned Single Judge in paragraph 8 of his judgment points out that the Tribunal had while making the Award "awarded a package deal to the workers" and had allowed various other benefits since he had placed a ceiling on dearness allowance. He has granted revision of pay scales, special allowances, etc. However, in paragraph 11 there is a mention that counsel for the workers had raised the contention that the salary structure of TOMCO was higher, the entire wage-packet was in fact better, and since it was a comparable industrial unit the workers of the company were entitled to the same. In fact the learned Single Judge notes that he had enquired of the management if it would be willing to grant the entire pay-packet of TOMCO to the workers of the Company and the management after taking time showed its willingness to do so but the workers did not agree. Thus although the learned Single Judge explored the possibility of the management giving the TOMCO pay-packet to the workers of the Company when the workers backed out on second thought he did not interfere with the Dongre Award in that behalf in view of the aforesaid statement.34. The Division Bench noticed the submission made on behalf of the Company in paragraph 46 of its judgment and conceded in paragraph 48 : "It cannot be gainsaid that one of the main considerations, which was weighed with the Tribunal, while introducing the revised pay scales is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500 per month, " which accords with what counsel for the Company has urged. It was on this consideration that the Division Bench concluded that both the revision of salary and introduction of the new dearness allowance system were interlinked and since the ceiling on the latter was lifted, the Division Bench considered it "only fair" to remand the matter to the Tribunal "to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it". The observations of the Division Bench had to be understood in the backdrop of the fact that the workers were content with the revised pay scales worked out under the Dongre Award and had therefore not questioned that part of the award. Since the learned Single Judge had not interfered with it, there was no question of their getting higher pay scales. When the Division Bench remitted the matter in this background the Tribunal should have realised that the remand was necessitated because the factum of imposition of a ceiling on dearness allowance was the reason which had impelled the Tribunal to increase the pay scales and since the ceiling was lifted it was necessary to consider whether upward revision of the pay scales was at all necessary in the changed circumstances and, if yes, whether the revision ordered under the Dongre Award was justified. There was no question of the pay scales being revised above the Dongre Award stipulations. Besides, we are also not happy with the approach of the Tribunal. It is not correct to say that the Division Bench had imposed any limitation of the type read by the Tribunal as evidenced by the recital in paragraph 22 of its order extracted earlier. We also find that the Tribunal has merely set out the rival contentions and the data in support thereof and has, without analysing the same, concluded that the modified revision of pay scales suggested by the workers was justified. This approach is far from satisfactory. The need for stagnation increment would again depend on the time span in each scale in the revised pay-structure. If the length of the pay scale is sufficient not to result in stagnation there would be no need for stagnation increment. We would, therefore, like the Tribunal to consider that question but if it comes to the conclusion that it is necessary to revise the pay scales and that the revised scales may cause some workers to stagnate at the maxima of the scale, it may opt in favour of the retention of the stagnation increase but if it does not see any scope for its retention it may for reasons to be stated to away with it. | 0[ds]It must be remembered that the jurisdiction of the Industrial Tribunal under the I. D. Act was invoked both by the management as well as the workers. It is well settled that the decision of the Tribunal rendered under the I. D. Act would be subject to review by the High Court under Articles 226/227 of the Constitution. Since against the decision of the Industrial Tribunal no remedy was available under the provisions of the I. D. Act, the aggrieved party could only invoke the jurisdiction of the High Court under the aforesaid articles. Since both the Company and the workers were aggrieved by the award, to the extent it went against them, they preferred writ petitions challenging the award. All the three writ petitions, two on behalf of the workers by the Sabha and the Union, the third by the Company, were heard together and disposed of by a common judgment. Against the decision of the learned Single Judge, appeals under the Letters Patent were preferred once again by the said three parties. The Company never questioned the jurisdiction of the High Court to hear and decide the writ petitions nor did it question the jurisdiction of the Division Bench under the Letters Patent. Even the Company had appealed against the learned Single Judges decision to the extent it was against it. No contention regarding the scope and ambit of the jurisdiction of the Division Bench was raised in the appeal. If the jurisdiction of the learned Single Judge was not challenged by the Company, the Company itself had invoked it, it is difficult to comprehend how the Company can challenge the jurisdiction of the appellate court. If the learned Single Judge had jurisdiction to hear the writ petitions against the decision of the Industrial Tribunal, at any rate if his jurisdiction was not questioned by the Company, it cannot lie in the mouth of the Company to challenge the appellate jurisdiction of the Division Bench since that jurisdiction is conferred by the Letters Patent. We are, therefore, of the view that this contention belatedly raised before us cannot and should not be entertained. We reject it.20. We now come to the main issue. We have indicated in detail the nature, scope and ambit of the controversy. The contesting parties have updated the tables on which they relied before the Tribunal and the High Court and have also presented fresh calculationsthe Company endeavouring to show that the percentage of neutralisation soars above 100% and hence the need to impose a ceiling so that the existing differentials between the emoluments drawn by the workers in the higherdo not exceed those drawn by the junior executives immediately above them; the workers on the other hand refuting the contention that there isand the need to impose a ceiling. In fact an attempt has been made to point out that those in the higherare scientists anddoing highly skilled work and it is wrong to think that they are in any manner inferior to junior executives. The workers have tried to emphasise that as the record stands it is not possible to say whether theis at the subsistence level,ge level orlevel to enable this Court to decide whether or not a case for imposition of ceiling is made out. It is also contended that the Company has tried, time and again, to cloud the facts and has falsely alleged that the 1970 base was not adopted by consent. Since that was the year in which the last revision had taken place under the Chitale/Bhojwani Awards, 1970 was taken as the base year by consent. It is, therefore, contended by the workers that the Company has tried to shift its stand from stage to stage of the litigation to suit its purpose in the fond hope that it may be able to persuade this court to its point of view. The respondents, therefore, have requested us not to look into these revised and misleading statements.21. We have, however, carefully examined the various statements placed on record to prove the rival points of view. The principal question is whether the Companys case ofed and, if yes, whether there is need to impose a ceiling on dearness allowance as advocated by the Tribunal and affirmed by the learned Single Judge. Now it is established that the present dearness allowance formula has been in vogue since long. It is also not in dispute that after the Chitale/Bhojwani Awards the Company had entered into settlements in 1979 and 1983 with theed employees in the Sewree factory and continued the existing formula. Before the Tribunal the Company produced statements to show that the neutralisation was as high as 204% at the minimum ofgrade tapering to 132.4% at the maximum ofgrade. As against that the workers contended that the percentage of neutralisation was 80% and 46%, respectively. The Tribunal held that the calculations made by both sides were incorrect. Referring to the Chitale Award the Tribunal points out that the Companys own statement showed that the neutralisation was 97.4% at the lowest and tapered to 86% at the highest. It, however, felt that 86% neutralisation was on the higher side. It was for this reason that the Tribunal opted for placement of a ceiling. However, the Tribunal did not determine the percentage of neutralisation on the basis of calculations submitted to it.The second ground on which the Company sought imposition of control or ceiling on dearness allowance is that it distorts the vertical relativity, in that, clerks receive emoluments exceeding what is paid to junior executives and are, therefore, disinclined to accept promotion. Since the basic pay of the workers belonging to theC1 to C4T1 to T4 categoriesis low they continue to be governed by the provisions of the I. D. Act whereas the junior executives are not governed by the said statute. The wages of the former would be determined either by settlements or by award made on reference under the said statute. These workers, therefore, constitute a class by themselves and their wage determination is under the provisions of the I. D. Act. But the junior executives do not belong to that class and their salaries are differently determined. The process of determination of their salary plan has nothing to do with the workers governed by the I. D. Act. How to make the promotional post attractive is for the company to decide but it may not be by denying the workers of a part of their dearness allowance for pegging down their emoluments. Besides it is well known that executives enjoy a certain status and perquisites which the workers do not receive. We think the better way to overcome the difficulty is make the junior executive grade more attractive rather than deny to the workers what they are receiving since long.24. Next, we have pointed out earlier the relation between wages and prices of food, clothing and other necessities of life which even the lowest wage earner purchases month after month. If the prices of these commodities rise and the basic wage remains constant, real wage actually falls creating a problem for survival for the lowest wage earner. And it is common knowledge that this frequently happens during period of inflation as is reflected from how rapidly the index rose from 313 points in 1950 to 6229 points by August 1993. To prevent the real wages from falling with the rise in CPI, some allowance had to be paid to the workers which gave rise to the introduction of the dearness allowances scheme. Besides, it must be realised that the protection against price rise is limited to only those items included in the basket and not to all items which a wage earner at the lowest level consumes. For those items not included in the basket, the wage earner at every level has to bear the brunt of inflation. It must also be remembered that while dietary habits change, the food items in the basket remain constant for want of periodical revision with the result that the new items of food which are highly price do not count for neutralisation. Again wage revisions do not take place for long spells. In certain wage plans upward revision of wages take place by the merger of a portion of the dearness allowance in the basic wage plus an addition thereto to take care of the inflationary dents in thein respect of other items outside the basket. Under certain dearness allowance schemes, neutralisation is allowed on tapering percentages on the assumption that those in the higher wage groups have a certain cushion to bear a part of the inflation. Such a scheme is in vogue in Central and State Government servants salary plans. That cushion does not remain static and gets depleted as the prices rise and there comes a time when it becomes necessary to inflate it once again by an upward revision of the salary structure. But in certain industries merger of dearness allowance in the basic wage does not take place at all as in the present case and instead periodically increases are allowed in the basic wage to nullify the adverse effect of inflation on items outside the basket. It must, however, be remembered that in the case of employees belonging to high wage islands, theirshrink on account of the deduction of2. It was the Company which had challenged the revisedprepared under the Dongre Award. The learned Single Judge spurned the Companys challenge. The Division Bench found it necessary to remit the matter to the Tribunal for reconsidering the question regarding revision of pay scales as in its view the Dongre Award had considered the revision necessary as a package formula since it had placed a control on dearness allowances, which control the Division Bench had lifted. Counsel, therefore, vehemently contended that there was no question of a further upward revision beyond what was allowed under the Dongre Award. Counsel submitted that the Deshpande Award whereunder higher pay scales have been granted is wholly unsustainable. We see merit in this line of reasoning.33. The learned Single Judge in paragraph 8 of his judgment points out that the Tribunal had while making the Award "awarded a package deal to the workers" and had allowed various other benefits since he had placed a ceiling on dearness allowance. He has granted revision of pay scales, special allowances, etc. However, in paragraph 11 there is a mention that counsel for the workers had raised the contention that the salary structure of TOMCO was higher, the entirewas in fact better, and since it was a comparable industrial unit the workers of the company were entitled to the same. In fact the learned Single Judge notes that he had enquired of the management if it would be willing to grant the entireof TOMCO to the workers of the Company and the management after taking time showed its willingness to do so but the workers did not agree. Thus although the learned Single Judge explored the possibility of the management giving the TOMCOto the workers of the Company when the workers backed out on second thought he did not interfere with the Dongre Award in that behalf in view of the aforesaid statement.34. The Division Bench noticed the submission made on behalf of the Company in paragraph 46 of its judgment and conceded in paragraph 48 : "It cannot be gainsaid that one of the main considerations, which was weighed with the Tribunal, while introducing the revised pay scales is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500 per month, " which accords with what counsel for the Company has urged. It was on this consideration that the Division Bench concluded that both the revision of salary and introduction of the new dearness allowance system were interlinked and since the ceiling on the latter was lifted, the Division Bench considered it "only fair" to remand the matter to the Tribunal "to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it". The observations of the Division Bench had to be understood in the backdrop of the fact that the workers were content with the revised pay scales worked out under the Dongre Award and had therefore not questioned that part of the award. Since the learned Single Judge had not interfered with it, there was no question of their getting higher pay scales. When the Division Bench remitted the matter in this background the Tribunal should have realised that the remand was necessitated because the factum of imposition of a ceiling on dearness allowance was the reason which had impelled the Tribunal to increase the pay scales and since the ceiling was lifted it was necessary to consider whether upward revision of the pay scales was at all necessary in the changed circumstances and, if yes, whether the revision ordered under the Dongre Award was justified. There was no question of the pay scales being revised above the Dongre Award stipulations. Besides, we are also not happy with the approach of the Tribunal. It is not correct to say that the Division Bench had imposed any limitation of the type read by the Tribunal as evidenced by the recital in paragraph 22 of its order extracted earlier. We also find that the Tribunal has merely set out the rival contentions and the data in support thereof and has, without analysing the same, concluded that the modified revision of pay scales suggested by the workers was justified. This approach is far from satisfactory. The need for stagnation increment would again depend on the time span in each scale in the revisedIf the length of the pay scale is sufficient not to result in stagnation there would be no need for stagnation increment. We would, therefore, like the Tribunal to consider that question but if it comes to the conclusion that it is necessary to revise the pay scales and that the revised scales may cause some workers to stagnate at the maxima of the scale, it may opt in favour of the retention of the stagnation increase but if it does not see any scope for its retention it may for reasons to be stated to away with it. | 0 | 13,857 | 2,559 | ### Instruction:
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the wage scales of comparable concern i. e. TOMCO and in that respect statement furnished by Shri Menon, Advocate for the Union, appear to be correct. Hence, I agree with a modified revision of wage scales, as demanded by the workmen." * 31. The learned counsel for the Company took serious exception to the upward revision of the scales above those recommended by the Dongre Award. His objection runs thus : The workers were not aggrieved by the revised wage-structure granted under the Dongre Award and had stated so in no uncertain terms in their writ petitions in the High Court in the following words : "The petitioner says that the petitioner is not challenging the entirety of the Award, but is limiting the attack on the Award, insofar as it relates to (a) Dearness Allowances, (b) Classification, (c) Automatic Promotion and Stagnation Increment, (d) Housing Loan and (e) Provident Fund." * This averment is not denied. 32. It was the Company which had challenged the revised wage-structure prepared under the Dongre Award. The learned Single Judge spurned the Companys challenge. The Division Bench found it necessary to remit the matter to the Tribunal for reconsidering the question regarding revision of pay scales as in its view the Dongre Award had considered the revision necessary as a package formula since it had placed a control on dearness allowances, which control the Division Bench had lifted. Counsel, therefore, vehemently contended that there was no question of a further upward revision beyond what was allowed under the Dongre Award. Counsel submitted that the Deshpande Award whereunder higher pay scales have been granted is wholly unsustainable. We see merit in this line of reasoning.33. The learned Single Judge in paragraph 8 of his judgment points out that the Tribunal had while making the Award "awarded a package deal to the workers" and had allowed various other benefits since he had placed a ceiling on dearness allowance. He has granted revision of pay scales, special allowances, etc. However, in paragraph 11 there is a mention that counsel for the workers had raised the contention that the salary structure of TOMCO was higher, the entire wage-packet was in fact better, and since it was a comparable industrial unit the workers of the company were entitled to the same. In fact the learned Single Judge notes that he had enquired of the management if it would be willing to grant the entire pay-packet of TOMCO to the workers of the Company and the management after taking time showed its willingness to do so but the workers did not agree. Thus although the learned Single Judge explored the possibility of the management giving the TOMCO pay-packet to the workers of the Company when the workers backed out on second thought he did not interfere with the Dongre Award in that behalf in view of the aforesaid statement.34. The Division Bench noticed the submission made on behalf of the Company in paragraph 46 of its judgment and conceded in paragraph 48 : "It cannot be gainsaid that one of the main considerations, which was weighed with the Tribunal, while introducing the revised pay scales is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500 per month, " which accords with what counsel for the Company has urged. It was on this consideration that the Division Bench concluded that both the revision of salary and introduction of the new dearness allowance system were interlinked and since the ceiling on the latter was lifted, the Division Bench considered it "only fair" to remand the matter to the Tribunal "to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it". The observations of the Division Bench had to be understood in the backdrop of the fact that the workers were content with the revised pay scales worked out under the Dongre Award and had therefore not questioned that part of the award. Since the learned Single Judge had not interfered with it, there was no question of their getting higher pay scales. When the Division Bench remitted the matter in this background the Tribunal should have realised that the remand was necessitated because the factum of imposition of a ceiling on dearness allowance was the reason which had impelled the Tribunal to increase the pay scales and since the ceiling was lifted it was necessary to consider whether upward revision of the pay scales was at all necessary in the changed circumstances and, if yes, whether the revision ordered under the Dongre Award was justified. There was no question of the pay scales being revised above the Dongre Award stipulations. Besides, we are also not happy with the approach of the Tribunal. It is not correct to say that the Division Bench had imposed any limitation of the type read by the Tribunal as evidenced by the recital in paragraph 22 of its order extracted earlier. We also find that the Tribunal has merely set out the rival contentions and the data in support thereof and has, without analysing the same, concluded that the modified revision of pay scales suggested by the workers was justified. This approach is far from satisfactory. The need for stagnation increment would again depend on the time span in each scale in the revised pay-structure. If the length of the pay scale is sufficient not to result in stagnation there would be no need for stagnation increment. We would, therefore, like the Tribunal to consider that question but if it comes to the conclusion that it is necessary to revise the pay scales and that the revised scales may cause some workers to stagnate at the maxima of the scale, it may opt in favour of the retention of the stagnation increase but if it does not see any scope for its retention it may for reasons to be stated to away with it.
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an addition thereto to take care of the inflationary dents in thein respect of other items outside the basket. Under certain dearness allowance schemes, neutralisation is allowed on tapering percentages on the assumption that those in the higher wage groups have a certain cushion to bear a part of the inflation. Such a scheme is in vogue in Central and State Government servants salary plans. That cushion does not remain static and gets depleted as the prices rise and there comes a time when it becomes necessary to inflate it once again by an upward revision of the salary structure. But in certain industries merger of dearness allowance in the basic wage does not take place at all as in the present case and instead periodically increases are allowed in the basic wage to nullify the adverse effect of inflation on items outside the basket. It must, however, be remembered that in the case of employees belonging to high wage islands, theirshrink on account of the deduction of2. It was the Company which had challenged the revisedprepared under the Dongre Award. The learned Single Judge spurned the Companys challenge. The Division Bench found it necessary to remit the matter to the Tribunal for reconsidering the question regarding revision of pay scales as in its view the Dongre Award had considered the revision necessary as a package formula since it had placed a control on dearness allowances, which control the Division Bench had lifted. Counsel, therefore, vehemently contended that there was no question of a further upward revision beyond what was allowed under the Dongre Award. Counsel submitted that the Deshpande Award whereunder higher pay scales have been granted is wholly unsustainable. We see merit in this line of reasoning.33. The learned Single Judge in paragraph 8 of his judgment points out that the Tribunal had while making the Award "awarded a package deal to the workers" and had allowed various other benefits since he had placed a ceiling on dearness allowance. He has granted revision of pay scales, special allowances, etc. However, in paragraph 11 there is a mention that counsel for the workers had raised the contention that the salary structure of TOMCO was higher, the entirewas in fact better, and since it was a comparable industrial unit the workers of the company were entitled to the same. In fact the learned Single Judge notes that he had enquired of the management if it would be willing to grant the entireof TOMCO to the workers of the Company and the management after taking time showed its willingness to do so but the workers did not agree. Thus although the learned Single Judge explored the possibility of the management giving the TOMCOto the workers of the Company when the workers backed out on second thought he did not interfere with the Dongre Award in that behalf in view of the aforesaid statement.34. The Division Bench noticed the submission made on behalf of the Company in paragraph 46 of its judgment and conceded in paragraph 48 : "It cannot be gainsaid that one of the main considerations, which was weighed with the Tribunal, while introducing the revised pay scales is that it was introducing the ceiling on dearness allowance, for those earning salary above Rs. 500 per month, " which accords with what counsel for the Company has urged. It was on this consideration that the Division Bench concluded that both the revision of salary and introduction of the new dearness allowance system were interlinked and since the ceiling on the latter was lifted, the Division Bench considered it "only fair" to remand the matter to the Tribunal "to consider the case for revision of wage scales afresh independently and irrespective of the change in the dearness allowance system which was proposed by it". The observations of the Division Bench had to be understood in the backdrop of the fact that the workers were content with the revised pay scales worked out under the Dongre Award and had therefore not questioned that part of the award. Since the learned Single Judge had not interfered with it, there was no question of their getting higher pay scales. When the Division Bench remitted the matter in this background the Tribunal should have realised that the remand was necessitated because the factum of imposition of a ceiling on dearness allowance was the reason which had impelled the Tribunal to increase the pay scales and since the ceiling was lifted it was necessary to consider whether upward revision of the pay scales was at all necessary in the changed circumstances and, if yes, whether the revision ordered under the Dongre Award was justified. There was no question of the pay scales being revised above the Dongre Award stipulations. Besides, we are also not happy with the approach of the Tribunal. It is not correct to say that the Division Bench had imposed any limitation of the type read by the Tribunal as evidenced by the recital in paragraph 22 of its order extracted earlier. We also find that the Tribunal has merely set out the rival contentions and the data in support thereof and has, without analysing the same, concluded that the modified revision of pay scales suggested by the workers was justified. This approach is far from satisfactory. The need for stagnation increment would again depend on the time span in each scale in the revisedIf the length of the pay scale is sufficient not to result in stagnation there would be no need for stagnation increment. We would, therefore, like the Tribunal to consider that question but if it comes to the conclusion that it is necessary to revise the pay scales and that the revised scales may cause some workers to stagnate at the maxima of the scale, it may opt in favour of the retention of the stagnation increase but if it does not see any scope for its retention it may for reasons to be stated to away with it.
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Hi Point Services Private Limited Vs. Chloro Controls (India) Private Limited & Others | 12th January, 2002, in order to salvage the situation and in a state of utter helplessness, wrongly contended that the plaintiff be permitted to conduct the business of electro chlorination equipments of the Kocha family outside the scope of the joint venture by interpreting the Joint Venture Agreements to be in respect of gas chlorination equipments only, and keeping the 5th Defendant away from electro chlorination business. Severn Trent, however, refused to accept this suggestion.33. Prima-facie, at this stage, we are of the opinion that even the plaintiff and Defendant No.9 accepted that the joint venture agreements were only in respect of gas chlorination equipments and did not cover electro chlorination business. Plaintiff strongly relied upon various circumstances which found favour by the learned Single Judge. Mr.Doctor strenuously contended that the Under Secretary to the Government of India, Ministry of Industry, addressed the letter dated 11.10.1996 to Defendant No.5 (Exhibit I to the plaint) conveying approval of the Government of India to the proposal for foreign collaboration with Defendant No.2 subject to the terms and conditions set out therein. Defendant No. 5 replied this on 21.12.1996 (Exhibit j to the plaint) and in so far as point No.2 of letter dated 11.10.1996 is concerned, approval was requested to be amended so as to include manufacture of gas chlorination and electro chlorination equipments among other products. This was responded by the Under Secretary to the Government of India, Ministry of Industry on 21.04.1997 (Exhibit L to the plaint) conveying the approval of the Government of India to the amendment of clauses 2, 3 and 4 of the approval letter dated 11.10.1996. Pursuant to the approval dated 21.04.1997 Supplementary Collaboration Agreement was executed between Defendant No.2 and Defendant No.5 wherein parties confirmed that they shall adhere to the terms and conditions as stipulated by the Government of India vide letter dated 11.10.1996, amended on 21.04.1997. The said Supplementary Collaboration Agreement is at Exhibit M to the plaint. Relying upon this correspondence alongwith the other circumstances, Mr.Doctor contended that the object of the Joint Venture Agreement was not only to manufacture gas chlorination equipments, but also to manufacture electro chlorination equipments.34. We do not find any substance in this contention. Clause 26 of the Shareholders Agreement dated 16.11.1995 provides that the said agreement sets-forth entire agreement and understanding between the parties as to the subject matter and superseded all negotiations, commitments and writings prior to the date of agreement pertaining to the subject matter of the said Agreement. Clause 28 thereof further provides that the Shareholders Agreement shall not be altered, modified or supplemented except with the prior written approval of the parties thereto. As noted earlier the Shareholders Agreement was entered into by and between Defendant No.2 on one hand and the plaintiff & Defendant No.9 on the other. Similarly, clause 24 of the Financial & Technical Know How Licence Agreement dated 16.11.1995 provides that no modification or amendment to the said agreement and no waiver of any of the terms and conditions set out therein shall be binding, unless made in writing, duly executed by both the parties. Plaintiff has not brought on record any material to indicate that various agreements entered into between the parties were suitably modified pursuant to the approval dated 21.04.1997 accorded by the Government of India. Even otherwise, no material is brought on record by the plaintiff to substantiate that pursuant to the approval dated 21.04.1997, Defendant No.5, was in fact manufacturing electro chlorination equipments.35. Clause 17 of the Shareholders Agreement provides that the plaintiff and Defendant No.9 agreed to transfer such of the assets as are related to gas chlorination equipments business presently carried on by the plaintiff and Defendant No.9 as per the Appendix IV of the said Agreement. Thus, prima-facie, the assertions made by the plaintiff that the plaintiff and Defendant No.9 transferred assets of their electro Chlorination equipment business to Defendant No.5 Joint Venture Company, is also factually incorrect, and further having regard to the joint venture agreement there was inherent possibility of deadlock regarding the management of the company viz.Defendant No.5. In that regard clauses 6, 7, 8 and 9 of the Shareholders Agreement indicate inherent possibility of deadlock in the management of the Company and consequently, if there is a deadlock, obviously, Defendant No.5 would not be in a position to carry on its business. Having regard to clauses 6, 7, 8 & 9 of the Shareholders Agreement and having further due regard to the fact that the disputes and differences arose between the plaintiff & Defendant No.9 on one hand and Defendant Nos.1 & 2 on the other from December, 1998 onwards and the said disputes and differences continued between them even in the year 2001, would prima-facie indicate that Defendant No.5 was not in a position to carry on business. It is in these circumstances, we are of the opinion that the plaintiff has not made out a prima-facie case for issuance of injunction as prayed for. This is to be appreciated on the backdrop of the fact that in for as Defendant No.4 is concerned, even in the plaint the plaintiff has admitted that prior to acquisition of Exceltec by Severn Trent, the Exceltec had an existing tie up and arrangement with Defendant No.4 in India.36. Even otherwise, there is one more reason for denying any interim relief to the plaintiff and that is the delay in approaching the Court. The Plaintiff has specifically averred in the plaint itself that Defendant Nos.1 & 2 started committing breaches since December 1998 and even in the year 2001 they continued to commit breaches. In the meeting of Board of Directors held on 10.12.2001 Defendant No.9 in terms of clauses 4.4.5 and 4.4.6 declared that the joint venture agreements are only in respect of gas chlorination equipments and the electro chlorination was excluded. Despite this position, the plaintiff has instituted a suit as late as on 19.01.2004. This is the additional reason for denying any interim relief to the plaintiff. | 0[ds]Perusal of thiswould indicate that it does not include any electro chlorination equipment. Appendix II to this agreement specifically deals with the products and parts not manufactured by Defendant No.Thus Appendix II clearly sets out the list of products and parts not manufactured by the Joint Venture and it further provides all capital control products not listed in Exhibit I. We have already noted that Appendix I to this agreement provides for products manufactured by Defendant No.5 for chlorine service only, and deals only with gas chlorination equipment and does not include any electro chlorinationour opinion, clause 4.5 is in two parts viz. (i) Mr.Kocha, Defendant No.9 (including his wife and sons), Chloro Controls, the Plaintiff shall not, during the term of this agreement, engage, directly or indirectly, or be financially interested in the manufacture, sale or distribution of chlorination equipments and related products which are similar to those manufactured or sold by Defendant No.5 Company. In so far as obligation cast on Defendant No.9 and the plaintiff is that during the term of this agreement, they shall not deal in any manner, in the manufacture, sale or distribution of chlorination equipments and related products which are similar to those manufactured or sold by the Defendant No.5 Company. (ii) During the term of this agreement the Capital Controls (Defendant Nos.12), its parents and associates will not directly or indirectly engage in or be financially interested in the manufacture, sale or distribution in India of the products manufactured or sold by Defendant No.5 Company. Thus, in so far as plaintiff and Defendant No.9 are concerned, the negative covenant is wide enough to include chlorination equipment and the related products which are similar to those manufactured or sold by defendant No.5. Thus , the said negative covenant in so far as plaintiff and Defendant No.9 are concerned, is widely worded, whereas in so far as Defendant Nos.12 are concerned, it only prohibits them from dealing in any manner with the products manufactured or sold by Defendant No.5 Company. In other words, this covenant is not as widely worded as compared with the wordings of negative covenant qua the plaintiff and Defendantotherwise, from the material on record, we do not find that in fact Defendant No.5 was manufacturing or selling electro chlorination equipments. As noted earlier, in the plaint the plaintiff has asserted that Defendant No.5 did not deal with Hypogen brand in view of its exorbitant pricing. That apart, plaintiff has not led any foundation in the plaint for invoking clause 4.5 of the Shareholders Agreement.Perusal of section 27 of the Indian Contract Act, in our opinion, casts onus of proving reasonableness under Exception I on the covenantee. The Plaintiff has notestablished that the agreements entered into between the parties fall in Exception 1 to Section 27 of the Act. The view we are taking is also supported by the decision of the Apex Court in the case of Percept DMarle (India) (P) Ltd.V/s.Zaheer Khan, (2006) 4 SCC 227. Prima facie we are not satisfied on the basis of material on record that the negative covenant contained in clause 4.5 of the Shareholders Agreement can be invoked by the plaintiff. As indicated earlier the plaintiff has notestablished that Defendant No.5 was manufacturing or selling electro chlorination equipments, having regard to various joint venture agreements.Perusal of clause 4.4.5 would indicate that the gas chlorination was covered in the joint venture agreement and electro chlorination was excluded in the joint venture agreement. Perusal of clause 4.4.6 would indicate that it was suggested that it would be prudent for all to keep the joint venture company away from electro chlorination business and continue the electro chlorination business in the company owned by Defendant No.9. This would resolve the most of the problems and no complications would take place at the time of bidding for the tender and no embarrassing situations would arise at any time in future between the companies., at this stage, we are of the opinion that even the plaintiff and Defendant No.9 accepted that the joint venture agreements were only in respect of gas chlorination equipments and did not cover electro chlorination business. Plaintiff strongly relied upon various circumstances which found favour by the learned Single Judge. Mr.Doctor strenuously contended that the Under Secretary to the Government of India, Ministry of Industry, addressed the letter dated 11.10.1996 to Defendant No.5 (Exhibitto the plaint) conveying approval of the Government of India to the proposal for foreign collaboration with Defendant No.2 subject to the terms and conditions set out therein. Defendant No. 5 replied this on 21.12.1996 (Exhibitto the plaint) and in so far as point No.2 of letter dated 11.10.1996 is concerned, approval was requested to be amended so as to include manufacture of gas chlorination and electro chlorination equipments among other products. This was responded by the Under Secretary to the Government of India, Ministry of Industry on 21.04.1997 (Exhibitto the plaint) conveying the approval of the Government of India to the amendment of clauses 2, 3 and 4 of the approval letter dated 11.10.1996. Pursuant to the approval dated 21.04.1997 Supplementary Collaboration Agreement was executed between Defendant No.2 and Defendant No.5 wherein parties confirmed that they shall adhere to the terms and conditions as stipulated by the Government of India vide letter dated 11.10.1996, amended on 21.04.1997. The said Supplementary Collaboration Agreement is at Exhibitto the plaint. Relying upon this correspondence alongwith the other circumstances, Mr.Doctor contended that the object of the Joint Venture Agreement was not only to manufacture gas chlorination equipments, but also to manufacture electro chlorinationregard to clauses 6, 7, 89 of the Shareholders Agreement and having further due regard to the fact that the disputes and differences arose between the plaintiffDefendant No.9 on one hand and Defendant Nos.12 on the other from December, 1998 onwards and the said disputes and differences continued between them even in the year 2001, wouldindicate that Defendant No.5 was not in a position to carry on business. It is in these circumstances, we are of the opinion that the plaintiff has not made out acase for issuance of injunction as prayed for. This is to be appreciated on the backdrop of the fact that in for as Defendant No.4 is concerned, even in the plaint the plaintiff has admitted that prior to acquisition of Exceltec by Severn Trent, the Exceltec had an existing tie up and arrangement with Defendant No.4 in India.36. Even otherwise, there is one more reason for denying any interim relief to the plaintiff and that is the delay in approaching the Court. The Plaintiff has specifically averred in the plaint itself that Defendant Nos.12 started committing breaches since December 1998 and even in the year 2001 they continued to commit breaches. In the meeting of Board of Directors held on 10.12.2001 Defendant No.9 in terms of clauses 4.4.5 and 4.4.6 declared that the joint venture agreements are only in respect of gas chlorination equipments and the electro chlorination was excluded. Despite this position, the plaintiff has instituted a suit as late as on 19.01.2004. This is the additional reason for denying any interim relief to the plaintiff. | 0 | 9,557 | 1,293 | ### Instruction:
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12th January, 2002, in order to salvage the situation and in a state of utter helplessness, wrongly contended that the plaintiff be permitted to conduct the business of electro chlorination equipments of the Kocha family outside the scope of the joint venture by interpreting the Joint Venture Agreements to be in respect of gas chlorination equipments only, and keeping the 5th Defendant away from electro chlorination business. Severn Trent, however, refused to accept this suggestion.33. Prima-facie, at this stage, we are of the opinion that even the plaintiff and Defendant No.9 accepted that the joint venture agreements were only in respect of gas chlorination equipments and did not cover electro chlorination business. Plaintiff strongly relied upon various circumstances which found favour by the learned Single Judge. Mr.Doctor strenuously contended that the Under Secretary to the Government of India, Ministry of Industry, addressed the letter dated 11.10.1996 to Defendant No.5 (Exhibit I to the plaint) conveying approval of the Government of India to the proposal for foreign collaboration with Defendant No.2 subject to the terms and conditions set out therein. Defendant No. 5 replied this on 21.12.1996 (Exhibit j to the plaint) and in so far as point No.2 of letter dated 11.10.1996 is concerned, approval was requested to be amended so as to include manufacture of gas chlorination and electro chlorination equipments among other products. This was responded by the Under Secretary to the Government of India, Ministry of Industry on 21.04.1997 (Exhibit L to the plaint) conveying the approval of the Government of India to the amendment of clauses 2, 3 and 4 of the approval letter dated 11.10.1996. Pursuant to the approval dated 21.04.1997 Supplementary Collaboration Agreement was executed between Defendant No.2 and Defendant No.5 wherein parties confirmed that they shall adhere to the terms and conditions as stipulated by the Government of India vide letter dated 11.10.1996, amended on 21.04.1997. The said Supplementary Collaboration Agreement is at Exhibit M to the plaint. Relying upon this correspondence alongwith the other circumstances, Mr.Doctor contended that the object of the Joint Venture Agreement was not only to manufacture gas chlorination equipments, but also to manufacture electro chlorination equipments.34. We do not find any substance in this contention. Clause 26 of the Shareholders Agreement dated 16.11.1995 provides that the said agreement sets-forth entire agreement and understanding between the parties as to the subject matter and superseded all negotiations, commitments and writings prior to the date of agreement pertaining to the subject matter of the said Agreement. Clause 28 thereof further provides that the Shareholders Agreement shall not be altered, modified or supplemented except with the prior written approval of the parties thereto. As noted earlier the Shareholders Agreement was entered into by and between Defendant No.2 on one hand and the plaintiff & Defendant No.9 on the other. Similarly, clause 24 of the Financial & Technical Know How Licence Agreement dated 16.11.1995 provides that no modification or amendment to the said agreement and no waiver of any of the terms and conditions set out therein shall be binding, unless made in writing, duly executed by both the parties. Plaintiff has not brought on record any material to indicate that various agreements entered into between the parties were suitably modified pursuant to the approval dated 21.04.1997 accorded by the Government of India. Even otherwise, no material is brought on record by the plaintiff to substantiate that pursuant to the approval dated 21.04.1997, Defendant No.5, was in fact manufacturing electro chlorination equipments.35. Clause 17 of the Shareholders Agreement provides that the plaintiff and Defendant No.9 agreed to transfer such of the assets as are related to gas chlorination equipments business presently carried on by the plaintiff and Defendant No.9 as per the Appendix IV of the said Agreement. Thus, prima-facie, the assertions made by the plaintiff that the plaintiff and Defendant No.9 transferred assets of their electro Chlorination equipment business to Defendant No.5 Joint Venture Company, is also factually incorrect, and further having regard to the joint venture agreement there was inherent possibility of deadlock regarding the management of the company viz.Defendant No.5. In that regard clauses 6, 7, 8 and 9 of the Shareholders Agreement indicate inherent possibility of deadlock in the management of the Company and consequently, if there is a deadlock, obviously, Defendant No.5 would not be in a position to carry on its business. Having regard to clauses 6, 7, 8 & 9 of the Shareholders Agreement and having further due regard to the fact that the disputes and differences arose between the plaintiff & Defendant No.9 on one hand and Defendant Nos.1 & 2 on the other from December, 1998 onwards and the said disputes and differences continued between them even in the year 2001, would prima-facie indicate that Defendant No.5 was not in a position to carry on business. It is in these circumstances, we are of the opinion that the plaintiff has not made out a prima-facie case for issuance of injunction as prayed for. This is to be appreciated on the backdrop of the fact that in for as Defendant No.4 is concerned, even in the plaint the plaintiff has admitted that prior to acquisition of Exceltec by Severn Trent, the Exceltec had an existing tie up and arrangement with Defendant No.4 in India.36. Even otherwise, there is one more reason for denying any interim relief to the plaintiff and that is the delay in approaching the Court. The Plaintiff has specifically averred in the plaint itself that Defendant Nos.1 & 2 started committing breaches since December 1998 and even in the year 2001 they continued to commit breaches. In the meeting of Board of Directors held on 10.12.2001 Defendant No.9 in terms of clauses 4.4.5 and 4.4.6 declared that the joint venture agreements are only in respect of gas chlorination equipments and the electro chlorination was excluded. Despite this position, the plaintiff has instituted a suit as late as on 19.01.2004. This is the additional reason for denying any interim relief to the plaintiff.
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equipments and related products which are similar to those manufactured or sold by the Defendant No.5 Company. (ii) During the term of this agreement the Capital Controls (Defendant Nos.12), its parents and associates will not directly or indirectly engage in or be financially interested in the manufacture, sale or distribution in India of the products manufactured or sold by Defendant No.5 Company. Thus, in so far as plaintiff and Defendant No.9 are concerned, the negative covenant is wide enough to include chlorination equipment and the related products which are similar to those manufactured or sold by defendant No.5. Thus , the said negative covenant in so far as plaintiff and Defendant No.9 are concerned, is widely worded, whereas in so far as Defendant Nos.12 are concerned, it only prohibits them from dealing in any manner with the products manufactured or sold by Defendant No.5 Company. In other words, this covenant is not as widely worded as compared with the wordings of negative covenant qua the plaintiff and Defendantotherwise, from the material on record, we do not find that in fact Defendant No.5 was manufacturing or selling electro chlorination equipments. As noted earlier, in the plaint the plaintiff has asserted that Defendant No.5 did not deal with Hypogen brand in view of its exorbitant pricing. That apart, plaintiff has not led any foundation in the plaint for invoking clause 4.5 of the Shareholders Agreement.Perusal of section 27 of the Indian Contract Act, in our opinion, casts onus of proving reasonableness under Exception I on the covenantee. The Plaintiff has notestablished that the agreements entered into between the parties fall in Exception 1 to Section 27 of the Act. The view we are taking is also supported by the decision of the Apex Court in the case of Percept DMarle (India) (P) Ltd.V/s.Zaheer Khan, (2006) 4 SCC 227. Prima facie we are not satisfied on the basis of material on record that the negative covenant contained in clause 4.5 of the Shareholders Agreement can be invoked by the plaintiff. As indicated earlier the plaintiff has notestablished that Defendant No.5 was manufacturing or selling electro chlorination equipments, having regard to various joint venture agreements.Perusal of clause 4.4.5 would indicate that the gas chlorination was covered in the joint venture agreement and electro chlorination was excluded in the joint venture agreement. Perusal of clause 4.4.6 would indicate that it was suggested that it would be prudent for all to keep the joint venture company away from electro chlorination business and continue the electro chlorination business in the company owned by Defendant No.9. This would resolve the most of the problems and no complications would take place at the time of bidding for the tender and no embarrassing situations would arise at any time in future between the companies., at this stage, we are of the opinion that even the plaintiff and Defendant No.9 accepted that the joint venture agreements were only in respect of gas chlorination equipments and did not cover electro chlorination business. Plaintiff strongly relied upon various circumstances which found favour by the learned Single Judge. Mr.Doctor strenuously contended that the Under Secretary to the Government of India, Ministry of Industry, addressed the letter dated 11.10.1996 to Defendant No.5 (Exhibitto the plaint) conveying approval of the Government of India to the proposal for foreign collaboration with Defendant No.2 subject to the terms and conditions set out therein. Defendant No. 5 replied this on 21.12.1996 (Exhibitto the plaint) and in so far as point No.2 of letter dated 11.10.1996 is concerned, approval was requested to be amended so as to include manufacture of gas chlorination and electro chlorination equipments among other products. This was responded by the Under Secretary to the Government of India, Ministry of Industry on 21.04.1997 (Exhibitto the plaint) conveying the approval of the Government of India to the amendment of clauses 2, 3 and 4 of the approval letter dated 11.10.1996. Pursuant to the approval dated 21.04.1997 Supplementary Collaboration Agreement was executed between Defendant No.2 and Defendant No.5 wherein parties confirmed that they shall adhere to the terms and conditions as stipulated by the Government of India vide letter dated 11.10.1996, amended on 21.04.1997. The said Supplementary Collaboration Agreement is at Exhibitto the plaint. Relying upon this correspondence alongwith the other circumstances, Mr.Doctor contended that the object of the Joint Venture Agreement was not only to manufacture gas chlorination equipments, but also to manufacture electro chlorinationregard to clauses 6, 7, 89 of the Shareholders Agreement and having further due regard to the fact that the disputes and differences arose between the plaintiffDefendant No.9 on one hand and Defendant Nos.12 on the other from December, 1998 onwards and the said disputes and differences continued between them even in the year 2001, wouldindicate that Defendant No.5 was not in a position to carry on business. It is in these circumstances, we are of the opinion that the plaintiff has not made out acase for issuance of injunction as prayed for. This is to be appreciated on the backdrop of the fact that in for as Defendant No.4 is concerned, even in the plaint the plaintiff has admitted that prior to acquisition of Exceltec by Severn Trent, the Exceltec had an existing tie up and arrangement with Defendant No.4 in India.36. Even otherwise, there is one more reason for denying any interim relief to the plaintiff and that is the delay in approaching the Court. The Plaintiff has specifically averred in the plaint itself that Defendant Nos.12 started committing breaches since December 1998 and even in the year 2001 they continued to commit breaches. In the meeting of Board of Directors held on 10.12.2001 Defendant No.9 in terms of clauses 4.4.5 and 4.4.6 declared that the joint venture agreements are only in respect of gas chlorination equipments and the electro chlorination was excluded. Despite this position, the plaintiff has instituted a suit as late as on 19.01.2004. This is the additional reason for denying any interim relief to the plaintiff.
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The State of Nagaland & Ors Vs. Nishevi Achumi | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 19.04.2021 passed by the High Court of Gauhati at Kohima in Writ Appeal No.21 of 2019 by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge directing the appellant – State to regularize the services of the deceased husband of the respondent from one day earlier to his death and thereafter to pay the family pension to the Respondent, the State has preferred the present appeal. 2. The deceased husband of the respondent was working as work-charge Jugali. He died in harness on 28.08.2005 as work-charge employee. That in the year 2017 and after a period of twelve years from the death of the deceased employee, the respondent herein the widow/wife of the deceased employee filed a writ petition before the learned Single Judge claiming that the services of her late husband ought to have been regularized and therefore, she is entitled to the family pension. The learned Single Judge allowed the said writ petition and directed the appellant – State to regularize his services from one day prior to the date of his demise so that the respondent herein – original writ petitioner and her family members are entitled to pensionary benefits. 2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the appellant – State had preferred the appeal before the Division Bench of the High Court. By the impugned judgment and order the Division Bench of the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge regularizing the services of the respondents husband one day prior to his demise. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court and not interfering with the judgment and order passed by the learned Single Judge, the State has preferred the present appeal. Though served nobody appears on behalf of the respondent. 3. Ms. K. Enatoli Sema, learned counsel appearing on behalf of the State has vehemently submitted that the impugned judgment and order passed by the High Court directing the appellant – State to regularize the services of the deceased employee one day prior to his demise is absolutely unsustainable. She has made the following submissions: (i) That during his life time, the deceased employee never claimed regularization; (ii) That the respondent - original petitioner - widow claimed regularization after a period of twelve years from the death of the deceased employee; (iii) Even otherwise the deceased employee was not entitled to regularization even on the date of his death as he was much below in the seniority list and his turn had not come for regularization; 3.1 Learned counsel appearing on behalf of the State has further submitted that assuming that the services of the workcharge employee were required to be regularized in that case also as per the scheme the services of the work-charge employee were to be regularized as per seniority and as and when the vacancy arises. It is submitted that all those workcharge employees whose services were regularized was much after the death of the deceased employee and that too as per the seniority. It is submitted that therefore at the time of the death of the deceased employee he was much below in the seniority list and therefore his services were not required to be regularized as his turn had not come. It is submitted that therefore the High Court has committed a grave error in directing the appellant to regularize the services of the appellant one day prior to his death. Making above submissions it is prayed to allow the present appeal. 4. Having heard learned counsel for the State and considering the submissions made on behalf of the State and having gone through the judgment and order passed by the learned Single Judge confirmed by the Division Bench, we are of the firm opinion that the High Court has committed a grave error in directing the appellant to regularize the services of the deceased employee one day prior to his death. 4.1 It is required to be noted that the deceased employee died in the year 2005. During his lifetime he never claimed any regularization. That the respondent herein – original writ petitioner - wife of the deceased employee claimed the regularization after a period of twelve years from the death of the deceased employee. At the time of the death of the deceased employee he was not entitled to regularization as he was much below in the list of the worked charge employees whose services were to be regularized. Under the Regularization Policy the services of the work-charge employees were required to be regularized as per the seniority and as and when the vacancy arises. The services of the other work-charge employees even who were senior to the deceased employees were regularized in the year 2009 i.e. after the death of the deceased employee. Despite the above, the High Court has directed the State to regularize the services of the deceased employee one day prior to his death, which otherwise his services were not required to be regularized as his turn had not come and he was much below in the seniority list. 4.2 Considering the aforesaid facts and circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. | 1[ds]4. Having heard learned counsel for the State and considering the submissions made on behalf of the State and having gone through the judgment and order passed by the learned Single Judge confirmed by the Division Bench, we are of the firm opinion that the High Court has committed a grave error in directing the appellant to regularize the services of the deceased employee one day prior to his death.4.1 It is required to be noted that the deceased employee died in the year 2005. During his lifetime he never claimed any regularization. That the respondent herein – original writ petitioner - wife of the deceased employee claimed the regularization after a period of twelve years from the death of the deceased employee. At the time of the death of the deceased employee he was not entitled to regularization as he was much below in the list of the worked charge employees whose services were to be regularized. Under the Regularization Policy the services of the work-charge employees were required to be regularized as per the seniority and as and when the vacancy arises. The services of the other work-charge employees even who were senior to the deceased employees were regularized in the year 2009 i.e. after the death of the deceased employee. Despite the above, the High Court has directed the State to regularize the services of the deceased employee one day prior to his death, which otherwise his services were not required to be regularized as his turn had not come and he was much below in the seniority list.4.2 Considering the aforesaid facts and circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside. | 1 | 985 | 307 | ### 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:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned Judgment and Order dated 19.04.2021 passed by the High Court of Gauhati at Kohima in Writ Appeal No.21 of 2019 by which the Division Bench of the High Court has dismissed the said appeal and has confirmed the judgment and order passed by the learned Single Judge directing the appellant – State to regularize the services of the deceased husband of the respondent from one day earlier to his death and thereafter to pay the family pension to the Respondent, the State has preferred the present appeal. 2. The deceased husband of the respondent was working as work-charge Jugali. He died in harness on 28.08.2005 as work-charge employee. That in the year 2017 and after a period of twelve years from the death of the deceased employee, the respondent herein the widow/wife of the deceased employee filed a writ petition before the learned Single Judge claiming that the services of her late husband ought to have been regularized and therefore, she is entitled to the family pension. The learned Single Judge allowed the said writ petition and directed the appellant – State to regularize his services from one day prior to the date of his demise so that the respondent herein – original writ petitioner and her family members are entitled to pensionary benefits. 2.1 Feeling aggrieved and dissatisfied with the judgment and order passed by the learned Single Judge, the appellant – State had preferred the appeal before the Division Bench of the High Court. By the impugned judgment and order the Division Bench of the High Court has dismissed the said appeal and has not interfered with the judgment and order passed by the learned Single Judge regularizing the services of the respondents husband one day prior to his demise. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the Division Bench of the High Court and not interfering with the judgment and order passed by the learned Single Judge, the State has preferred the present appeal. Though served nobody appears on behalf of the respondent. 3. Ms. K. Enatoli Sema, learned counsel appearing on behalf of the State has vehemently submitted that the impugned judgment and order passed by the High Court directing the appellant – State to regularize the services of the deceased employee one day prior to his demise is absolutely unsustainable. She has made the following submissions: (i) That during his life time, the deceased employee never claimed regularization; (ii) That the respondent - original petitioner - widow claimed regularization after a period of twelve years from the death of the deceased employee; (iii) Even otherwise the deceased employee was not entitled to regularization even on the date of his death as he was much below in the seniority list and his turn had not come for regularization; 3.1 Learned counsel appearing on behalf of the State has further submitted that assuming that the services of the workcharge employee were required to be regularized in that case also as per the scheme the services of the work-charge employee were to be regularized as per seniority and as and when the vacancy arises. It is submitted that all those workcharge employees whose services were regularized was much after the death of the deceased employee and that too as per the seniority. It is submitted that therefore at the time of the death of the deceased employee he was much below in the seniority list and therefore his services were not required to be regularized as his turn had not come. It is submitted that therefore the High Court has committed a grave error in directing the appellant to regularize the services of the appellant one day prior to his death. Making above submissions it is prayed to allow the present appeal. 4. Having heard learned counsel for the State and considering the submissions made on behalf of the State and having gone through the judgment and order passed by the learned Single Judge confirmed by the Division Bench, we are of the firm opinion that the High Court has committed a grave error in directing the appellant to regularize the services of the deceased employee one day prior to his death. 4.1 It is required to be noted that the deceased employee died in the year 2005. During his lifetime he never claimed any regularization. That the respondent herein – original writ petitioner - wife of the deceased employee claimed the regularization after a period of twelve years from the death of the deceased employee. At the time of the death of the deceased employee he was not entitled to regularization as he was much below in the list of the worked charge employees whose services were to be regularized. Under the Regularization Policy the services of the work-charge employees were required to be regularized as per the seniority and as and when the vacancy arises. The services of the other work-charge employees even who were senior to the deceased employees were regularized in the year 2009 i.e. after the death of the deceased employee. Despite the above, the High Court has directed the State to regularize the services of the deceased employee one day prior to his death, which otherwise his services were not required to be regularized as his turn had not come and he was much below in the seniority list. 4.2 Considering the aforesaid facts and circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.
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4. Having heard learned counsel for the State and considering the submissions made on behalf of the State and having gone through the judgment and order passed by the learned Single Judge confirmed by the Division Bench, we are of the firm opinion that the High Court has committed a grave error in directing the appellant to regularize the services of the deceased employee one day prior to his death.4.1 It is required to be noted that the deceased employee died in the year 2005. During his lifetime he never claimed any regularization. That the respondent herein – original writ petitioner - wife of the deceased employee claimed the regularization after a period of twelve years from the death of the deceased employee. At the time of the death of the deceased employee he was not entitled to regularization as he was much below in the list of the worked charge employees whose services were to be regularized. Under the Regularization Policy the services of the work-charge employees were required to be regularized as per the seniority and as and when the vacancy arises. The services of the other work-charge employees even who were senior to the deceased employees were regularized in the year 2009 i.e. after the death of the deceased employee. Despite the above, the High Court has directed the State to regularize the services of the deceased employee one day prior to his death, which otherwise his services were not required to be regularized as his turn had not come and he was much below in the seniority list.4.2 Considering the aforesaid facts and circumstances, the impugned judgment and order passed by the High Court is unsustainable and the same deserves to be quashed and set aside.
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Dattonpant Gopalvarao Devakate Vs. Vithabrao Maruthirao Janagavai, | the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. The requisite period of 15 days was given but the defect in the notice was that it did not expire with the end of the month of the tenancy. The end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court.8. Under Ext. P-12 the appellant agreed to pay Rs. 600 as rent for one year from 9-4-1945. The tenancy obviously therefore, commenced from that date. That being so, under Section 110 of the Transfer of Property Act in computing the period of one year the date of commencing i.e. the 9th day of April, 1945 had to be excluded. The one years tenancy ended on the 9th April, 1946. It is clearly mentioned to be so in Ext. P-12 in these words :"I shall make use and enjoyment of the said shops as a tenant for one year and deliver your shops to you without objection on 9-4-1946."By holding over the tenancy from month-to-month started from the 10th April 1946 ending on the 9th day of the following month. This view finds support from the Rent Receipts Exts. D-1 and D-1 (a). The evidence on behalf of the respondent that there was a mistake in those receipts is not correct as the said receipts are in conformity with Ext. P-12.On the other hand Exts. P-13 and P-14, the other two Rent Receipts being not in accord with Ext. P-12 could not be relied on. In Ext. P-16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050 per year has fixed it with effect from 10-4-1963. That also shows that the tenancy month commenced from l0th day of a month and ended on the 9th day of the following month9. The view taken by the learned District Judge as also by the High Court that the one years tenancy ended on the 8th April, 1946 when the tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month is clearly erroneous in law. That being so there was no valid and legal termination of the contractual tenancy.10. In Benoy Krishna v. Salsiccioni, 59 Ind App 414 = (AIR 1932 PC 279 ) on the facts of that case Lord Tomlin delivering the judgment of the Judicial Committee of the Privy Council held the notice to be valid. A lease for residential purpose of certain property in Calcutta was expressed to be from June 1, 1921, for the ensuing four years. The tenant held-over. The monthly tenancy was sought to be terminated by the lessee stating therein that possession would be given up on March 1. The landlords contention that the notice ended on February 29, 1928 was not accepted. The four years lease was held to have ended on midnight of June 1, 1925. The monthly tenancy began on the 2nd of the month ending on the 1st and so the notice was held to be valid.11. We do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of Section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, T. P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit.12. In support of his contention Mr. Chitaley placed reliance on two decisions of this Court namely Ganga Dutt v. Kartik Chandra, (1961) - 3 SCR 813 = (AIR 1961 SC 1067 ) and in Pooran Chand v. Motilal, 1963 Supp (2) SCR 906 = (AIR l964 SC 461). Neither of these supports his contention. In the case of Ganga Dutt Murarka a passage from the decision of the Federal Court in the case of Kai Khushroo Bezonee Capadia v. Bai Jerbai Hirjibhoy Wardhen, 1949 FCR 262 = (AIR 1949 FC 124) was quoted with approval. A portion of it may be usefully quoted here also. It runs thus :"In such circumstance acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy, and it would not be open to such a tenant to urge by way of defence, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit."The tenancy of the appellant in the above case was found to have been determined by efflux of time and subsequent occupation was not in pursuance of any, contract, express or implied but-by virtue of the protection given by successive, statutes. In the case of Pooran Chand, Subba Rao, J. as he then was, said at p. 912; (of l963 Supp 2 SCR) = at p. 463 of AIR), when a similar argument was advanced before him :"It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied: that the term of the tenancy had expired by efflux of time and. therefore, no question of statutory notice would arise.No notice is necessary if a lease of immovable property; determining under clause (and) of Section ll1 of the transfer of Property Act by efflux of the time limited thereby. | 1[ds]We have been taken through the portions of the judgments of all the three courts below and the relevant pieces of documentary and oral evidence adduced by the parties. On the question of the respondent requiring the suit premises reasonably and bona fide for his personal occupation as also on the point of comparative hardship two views were possible on the materials in the record of this case. A view in favour of the tenant was taken by the trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court were not found to be such by the High Court as to justify the exercise of its revisional power under Section 50 of the Act. It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of theCode of Civil Procedure. But at the same time it is not wide enough to make the High Court a second court of first appeal. We do not think that there are such pressing grounds in this case, which would justify our upsetting the views of the High Court confirming those of the lower Appellate Court. It is not necessary to discuss the first two points urged on behalf of the petitioner in any detail and we reject them on the short ground mentioned above.6. Coming to the question of notice we would like to state at the outset that on the basis of the-evidence in the case the Appellate Court took the view that the lease was not for a manufacturing purpose. The lease was for one year which expired on 9-4-1946. The tenant held over under Section 116 of the Transfer of Property Act. Ext. P-12 did not mention the purpose of the lease. The learned District Judge was of the opinion that the appellant started manufacturing Soda in a small portion of the demised premises after the lease for one year was taken. In any view of the matter the dominant purpose of the lease was not a manufacturing one but was the sale of aerated water. The High Court has affirmed this finding in revision. We do not feel inclined to upset the findings of the two courts below in this regard. If the purpose of the lease was not a manufacturing one, then the holding over under Section 116 of the Transfer of Property Act created a month-to-month tenancy terminable by 15 days notice ending with the tenancy month given under Section 106 of the said Act.The view taken by the learned District Judge as also by the High Court that the one years tenancy ended on the 8th April, 1946 when the tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month is clearly erroneous in law. That being so there was no valid and legal termination of the contractualholding over the tenancy from month-to-month started from the 10th April 1946 ending on the 9th day of the following month. This view finds support from the Rent Receipts Exts. D-1 and D-1 (a). The evidence on behalf of the respondent that there was a mistake in those receipts is not correct as the said receipts are in conformity with Ext. P-12.On the other hand Exts. P-13 and P-14, the other two Rent Receipts being not in accord with Ext. P-12 could not be relied on. In Ext. P-16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050 per year has fixed it with effect from 10-4-1963. That also shows that the tenancy month commenced from l0th day of a month and ended on the 9th day of the followingWe do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of Section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, T. P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit.7. The appellant, however, must succeed on the last submission made on his behalf that even so, the notice was invalid. As already stated the notice purported to terminate the tenancy by the 8th December, 1968 treating the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. The requisite period of 15 days was given but the defect in the notice was that it did not expire with the end of the month of the tenancy. The end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court. | 1 | 2,307 | 933 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. The requisite period of 15 days was given but the defect in the notice was that it did not expire with the end of the month of the tenancy. The end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court.8. Under Ext. P-12 the appellant agreed to pay Rs. 600 as rent for one year from 9-4-1945. The tenancy obviously therefore, commenced from that date. That being so, under Section 110 of the Transfer of Property Act in computing the period of one year the date of commencing i.e. the 9th day of April, 1945 had to be excluded. The one years tenancy ended on the 9th April, 1946. It is clearly mentioned to be so in Ext. P-12 in these words :"I shall make use and enjoyment of the said shops as a tenant for one year and deliver your shops to you without objection on 9-4-1946."By holding over the tenancy from month-to-month started from the 10th April 1946 ending on the 9th day of the following month. This view finds support from the Rent Receipts Exts. D-1 and D-1 (a). The evidence on behalf of the respondent that there was a mistake in those receipts is not correct as the said receipts are in conformity with Ext. P-12.On the other hand Exts. P-13 and P-14, the other two Rent Receipts being not in accord with Ext. P-12 could not be relied on. In Ext. P-16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050 per year has fixed it with effect from 10-4-1963. That also shows that the tenancy month commenced from l0th day of a month and ended on the 9th day of the following month9. The view taken by the learned District Judge as also by the High Court that the one years tenancy ended on the 8th April, 1946 when the tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month is clearly erroneous in law. That being so there was no valid and legal termination of the contractual tenancy.10. In Benoy Krishna v. Salsiccioni, 59 Ind App 414 = (AIR 1932 PC 279 ) on the facts of that case Lord Tomlin delivering the judgment of the Judicial Committee of the Privy Council held the notice to be valid. A lease for residential purpose of certain property in Calcutta was expressed to be from June 1, 1921, for the ensuing four years. The tenant held-over. The monthly tenancy was sought to be terminated by the lessee stating therein that possession would be given up on March 1. The landlords contention that the notice ended on February 29, 1928 was not accepted. The four years lease was held to have ended on midnight of June 1, 1925. The monthly tenancy began on the 2nd of the month ending on the 1st and so the notice was held to be valid.11. We do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of Section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, T. P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit.12. In support of his contention Mr. Chitaley placed reliance on two decisions of this Court namely Ganga Dutt v. Kartik Chandra, (1961) - 3 SCR 813 = (AIR 1961 SC 1067 ) and in Pooran Chand v. Motilal, 1963 Supp (2) SCR 906 = (AIR l964 SC 461). Neither of these supports his contention. In the case of Ganga Dutt Murarka a passage from the decision of the Federal Court in the case of Kai Khushroo Bezonee Capadia v. Bai Jerbai Hirjibhoy Wardhen, 1949 FCR 262 = (AIR 1949 FC 124) was quoted with approval. A portion of it may be usefully quoted here also. It runs thus :"In such circumstance acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as evidence of a new agreement of tenancy, and it would not be open to such a tenant to urge by way of defence, in a suit for ejectment brought against him, under the provisions of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit."The tenancy of the appellant in the above case was found to have been determined by efflux of time and subsequent occupation was not in pursuance of any, contract, express or implied but-by virtue of the protection given by successive, statutes. In the case of Pooran Chand, Subba Rao, J. as he then was, said at p. 912; (of l963 Supp 2 SCR) = at p. 463 of AIR), when a similar argument was advanced before him :"It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied: that the term of the tenancy had expired by efflux of time and. therefore, no question of statutory notice would arise.No notice is necessary if a lease of immovable property; determining under clause (and) of Section ll1 of the transfer of Property Act by efflux of the time limited thereby.
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We have been taken through the portions of the judgments of all the three courts below and the relevant pieces of documentary and oral evidence adduced by the parties. On the question of the respondent requiring the suit premises reasonably and bona fide for his personal occupation as also on the point of comparative hardship two views were possible on the materials in the record of this case. A view in favour of the tenant was taken by the trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court were not found to be such by the High Court as to justify the exercise of its revisional power under Section 50 of the Act. It is true that the power conferred on the High Court under Section 50 is not as narrow as the revisional power of the High Court under Section 115 of theCode of Civil Procedure. But at the same time it is not wide enough to make the High Court a second court of first appeal. We do not think that there are such pressing grounds in this case, which would justify our upsetting the views of the High Court confirming those of the lower Appellate Court. It is not necessary to discuss the first two points urged on behalf of the petitioner in any detail and we reject them on the short ground mentioned above.6. Coming to the question of notice we would like to state at the outset that on the basis of the-evidence in the case the Appellate Court took the view that the lease was not for a manufacturing purpose. The lease was for one year which expired on 9-4-1946. The tenant held over under Section 116 of the Transfer of Property Act. Ext. P-12 did not mention the purpose of the lease. The learned District Judge was of the opinion that the appellant started manufacturing Soda in a small portion of the demised premises after the lease for one year was taken. In any view of the matter the dominant purpose of the lease was not a manufacturing one but was the sale of aerated water. The High Court has affirmed this finding in revision. We do not feel inclined to upset the findings of the two courts below in this regard. If the purpose of the lease was not a manufacturing one, then the holding over under Section 116 of the Transfer of Property Act created a month-to-month tenancy terminable by 15 days notice ending with the tenancy month given under Section 106 of the said Act.The view taken by the learned District Judge as also by the High Court that the one years tenancy ended on the 8th April, 1946 when the tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month is clearly erroneous in law. That being so there was no valid and legal termination of the contractualholding over the tenancy from month-to-month started from the 10th April 1946 ending on the 9th day of the following month. This view finds support from the Rent Receipts Exts. D-1 and D-1 (a). The evidence on behalf of the respondent that there was a mistake in those receipts is not correct as the said receipts are in conformity with Ext. P-12.On the other hand Exts. P-13 and P-14, the other two Rent Receipts being not in accord with Ext. P-12 could not be relied on. In Ext. P-16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050 per year has fixed it with effect from 10-4-1963. That also shows that the tenancy month commenced from l0th day of a month and ended on the 9th day of the followingWe do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of Section 2 of the Act if he would have continued in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out in Section 111, T. P. Act it was not open to the landlord to treat the appellant as a statutory tenant and seek his eviction without service of a notice to quit.7. The appellant, however, must succeed on the last submission made on his behalf that even so, the notice was invalid. As already stated the notice purported to terminate the tenancy by the 8th December, 1968 treating the month of tenancy as commencing from the 9th day of a month and ending on the 8th day of the month following. The requisite period of 15 days was given but the defect in the notice was that it did not expire with the end of the month of the tenancy. The end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court.
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A.Kanthamani Vs. Nasreen Ahmed | settled, let us examine the facts of this case. 32) At the outset, we may observe that this Court is loath to undertake the task of appreciating the evidence in an appeal filed under Article 136 of the Constitution of India. It is more so when such appeal arises out of the judgment, which has recorded concurrent findings of fact.33) However, since in this case, leave was granted and at the time of hearing, learned counsel for the parties took us through the evidence in support of their submissions, we considered it proper to peruse the evidence with a view to find out as to whether impugned judgment suffers from any error on facts or/and law? 34) Coming first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason.35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court.36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea.37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable.40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990.41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected.42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason.43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant.44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion.45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed.46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.47) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that since the plaintiff was insisting for execution of sale deed in relation to some more portions, which did not form part of the agreement and hence it should have been held that the plaintiff committed the breach of the agreement and not the defendant. | 0[ds]21) Having heard learned counsel for the parties and on perusal of the record of the case, we find no force in any of the submissions of the learned counsel for the appellantTherefore, the plaint which seeks the relief of specific performance of the agreement/contract must contain all requirements of Section 16 (c) read with requirements contained in Form Nos. 47 and 48 of Appendixof C.P.C.27) Article 54 of the Limitation Act provides a period of 3 year for filing a suit for specific performance of contract/agreement. A period of 3 years is required to be counted from the date fixed by the parties for the performance, or if no such date is fixed, when the plaintiff has noticed that the performance is refused. The plaint should, therefore, also have necessary pleading satisfying the requirement of ArticleAt the outset, we may observe that this Court is loath to undertake the task of appreciating the evidence in an appeal filed under Article 136 of the Constitution of India. It is more so when such appeal arises out of the judgment, which has recorded concurrent findings of fact.33) However, since in this case, leave was granted and at the time of hearing, learned counsel for the parties took us through the evidence in support of their submissions, we considered it proper to peruse the evidence with a view to find out as to whetherimpugned judgment suffers from any error on facts or/andComing first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason.35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court.36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea.37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable.40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990.41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected.42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason.43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant.44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion.45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed.46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.47) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that since the plaintiff was insisting for execution of sale deed in relation to some more portions, which did not form part of the agreement and hence it should have been held that the plaintiff committed the breach of the agreement and not the defendant. | 0 | 4,342 | 1,229 | ### Instruction:
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settled, let us examine the facts of this case. 32) At the outset, we may observe that this Court is loath to undertake the task of appreciating the evidence in an appeal filed under Article 136 of the Constitution of India. It is more so when such appeal arises out of the judgment, which has recorded concurrent findings of fact.33) However, since in this case, leave was granted and at the time of hearing, learned counsel for the parties took us through the evidence in support of their submissions, we considered it proper to peruse the evidence with a view to find out as to whether impugned judgment suffers from any error on facts or/and law? 34) Coming first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason.35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court.36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea.37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable.40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990.41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected.42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason.43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant.44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion.45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed.46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.47) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that since the plaintiff was insisting for execution of sale deed in relation to some more portions, which did not form part of the agreement and hence it should have been held that the plaintiff committed the breach of the agreement and not the defendant.
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is refused. The plaint should, therefore, also have necessary pleading satisfying the requirement of ArticleAt the outset, we may observe that this Court is loath to undertake the task of appreciating the evidence in an appeal filed under Article 136 of the Constitution of India. It is more so when such appeal arises out of the judgment, which has recorded concurrent findings of fact.33) However, since in this case, leave was granted and at the time of hearing, learned counsel for the parties took us through the evidence in support of their submissions, we considered it proper to peruse the evidence with a view to find out as to whetherimpugned judgment suffers from any error on facts or/andComing first to the submission of the learned counsel for the appellant about the maintainability of suit, in our considered view, it has no merit for more than one reason.35) First, as rightly argued by learned counsel for the respondent, the objection regarding the maintainability of the Suit was neither raised by the defendant in the written statement nor in first appeal before the High Court and nor in grounds of appeal in this Court.36) Second, since no plea was raised in the written statement, a fortiori, no issue was framed and, in consequence, neither the Trial Court nor the High Court could render any finding on the plea.37) Third, it is a well-settled principle of law that the plea regarding the maintainability of suit is required to be raised in the first instance in the pleading (written statement) then only such plea can be adjudicated by the Trial Court on its merits as a preliminary issue under Order 14 Rule 2 of the CPC. Once a finding is rendered on the plea, the same can then be examined by the first or/and second appellate Court.38) It is only in appropriate cases, where the Court prima facie finds by mere perusal of plaint allegations that the suit is barred by any express provision of law or is not legally maintainable due to any legal provision; a judicial notice can be taken to avoid abuse of judicial process in prosecuting such suit. Such is, however, not the case here.39) Fourth, the decision relied on by the learned counsel for the appellant in the case of I.S. Sikander (supra) turns on the facts involved therein and is thus distinguishable.40) Lastly, the suit filed by the respondent seeking specific performance of the agreement dated 05.03.1989 was maintainable for the reason that the cause of action to file the suit arose on the expiry of period mentioned in the agreement (31.12.1989) for its performance as provided in Article 54 of the Limitation Act and it was rightly filed immediately within 10 days on 10.01.1990.41) For the aforementioned reasons, we find no merit in the first submission of learned counsel for the appellant, which is rejected.42) Coming now to the second and third submission of learned counsel for the appellant, we are of the considered opinion that it has also no merit and hence deserve to be rejected for more than one reason.43) First, the plaintiff had pleaded the necessary requirements of Section 16 (c) of the Specific Relief Act, 1963 read with the requirement of Forms 47, 48 and Article 54 of the Limitation Act in the plaint; Second, the defendant did not dispute the execution of agreement with the plaintiff and, in fact, entered in correspondence with the plaintiff for incorporation of some clauses therein; Third, the plaintiff proved her readiness and willingness to perform her part of agreement and also proved her financial capacity to purchase the suit property by adducing adequate evidence; Fourth, the plaintiff had paid more than Rs.2 lacs to the defendant prior to execution of sale deed in terms of agreement dated 05.03.1989 and was, therefore, required to pay balance sum of Rs.1,47,200/- to the defendant; Fifth, on admitted facts, therefore, the plaintiff had paid more than 50% of the sale consideration to the defendant before the due date of execution of sale deed; Sixth, the plaintiff had also proved that she had the requisite financial capacity to pay the balance sale consideration to the defendant inasmuch as she had arranged the funds by obtaining loan from the LIC; Seventh, the plaintiff filed the suit immediately on expiry of the period within 10 days to show her readiness and willingness to purchase the property; and Eighth, once it was held that the defendant committed breach in avoiding to execute the agreement, whereas the plaintiff performed her part of agreement and was ready and willing to perform her part, the Trial Court was justified in exercising its discretion in favour of the plaintiff by passing a decree for specific performance of agreement against the defendant.44) In our view, none of these findings could be assailed as being either perverse or de hors the evidence or against any provision of law and nor these findings could be assailed on the ground that no judicial man could ever reach to such conclusion.45) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that the plaintiff did not come to the Court with clean hands and hence the suit is liable to be dismissed.46) In our view, both the Courts below rightly rejected this submission. There is no evidence to sustain the submission. On the other hand, we find that it is the defendant, who despite accepting the substantial money (more than 50%) towards sale consideration from the plaintiff, avoided executing the sale deed on one or other false pretext.47) We also do not find any merit in the submission of the learned counsel for the appellant when he contended that since the plaintiff was insisting for execution of sale deed in relation to some more portions, which did not form part of the agreement and hence it should have been held that the plaintiff committed the breach of the agreement and not the defendant.
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Rohtas Industries Ltd Vs. Brijnandan Pandey | to the appellants application under S.22 of the Act, the said workmen denied however that they were at any time engaged temporarily for temporary work: vide paras. 3 and 6 of the affidavit. Obviously they were shifting from the position which they had originally taken up. No evidence was given that the men who were employed temporarily were afterwards made permanent. They filed a schedule, marked A to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped. On an examination of the schedule (Annexure A) it appears that a number of them were put on spare list when the erection work was completed some time in 1952. Annexure A therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952. The first Batch of sixty-nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant reaction works were completed. The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above. 9. With regard to the terms of employment embodied in the temporary appointment form, the respondents case was that the appointment forms were signed as a result of the strike in 1948, it was never signed at all and the comment of learned counsel for the respondents that the appellant company have not very little force (Sic). The respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed discharge. 10. Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees. He has agreed that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us. We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works. Secondly, learned counsel for the respondents has contended that under S.22 of the Act the Appellate Tribunal had discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere.It is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice. 11. The discretion which an Industries Tribunal has must be exercised in accordance with well-recognised principles. There is undoubtedly a distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining Vol. I, page 536):"Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements." A Court of Law proceeds on the footing that no power exists in the Courts to make contracts for people; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever. 12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this case. We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation. | 1[ds]In our opinion, these contentions are correct and should be upheldLearned counsel for the Appellant has rightly pointed out that even in respect of the completion or erection works the conclusion of the Appellate Tribunal is a complete non sequitur. First of all, the Directors Report was dated 10-7-1951 though the balance sheet of the company within which the report was dealing related to the period ending on 31-10-1950. The report naturally referred to such works as were completed on or before 10-7-1951. It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completionUnder their terms of employment temporary employees could be moved from one work to the other and the mere circumstance that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent. These are circumstances which have been completely ignored by the Labour Appellate TribunalThe respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed dischargeWe have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection worksIt is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injusticeWe cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this caseWe do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation. | 1 | 3,618 | 696 | ### 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:
to the appellants application under S.22 of the Act, the said workmen denied however that they were at any time engaged temporarily for temporary work: vide paras. 3 and 6 of the affidavit. Obviously they were shifting from the position which they had originally taken up. No evidence was given that the men who were employed temporarily were afterwards made permanent. They filed a schedule, marked A to their affidavit wherein they showed their period of service and the name of the factory or plant from where their duties stopped. On an examination of the schedule (Annexure A) it appears that a number of them were put on spare list when the erection work was completed some time in 1952. Annexure A therefore supports the case of the appellant company that the completion of the erection works was a gradual process, some were completed in 1950, some in 1951 and some in 1952. The first Batch of sixty-nine employees with whom we are concerned were put on the spare list between March and July 1952 and the second batch were put on the spare list in August 1952 when the relevant reaction works were completed. The finding of the Labour Appellate Tribunal with regard to the completion of erection works was vitiated by reason of the failure to take into consideration the circumstances stated above. 9. With regard to the terms of employment embodied in the temporary appointment form, the respondents case was that the appointment forms were signed as a result of the strike in 1948, it was never signed at all and the comment of learned counsel for the respondents that the appellant company have not very little force (Sic). The respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed discharge. 10. Learned counsel for the respondents has contended before us that the finding of the Labour Appellate Tribunal is a finding on a question of fact, namely, whether the respondents were temporary or permanent employees. He has agreed that this Court should not interfere even though the finding is based on reasons which may not appear convincing to us. We have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection works. Secondly, learned counsel for the respondents has contended that under S.22 of the Act the Appellate Tribunal had discretion either to lift the ban or not to lift it and in a matter of discretion this Court should not interfere.It is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injustice. 11. The discretion which an Industries Tribunal has must be exercised in accordance with well-recognised principles. There is undoubtedly a distinction between commercial and industrial arbitration. As has been pointed out by Ludwig Teller (Labour Disputes and Collective Bargaining Vol. I, page 536):"Industrial arbitration may involve the extension of an existing agreement, or the making of a new one, or in general the creation of new obligations or modifications of old ones, while commercial arbitration generally concerns itself with interpretation of existing obligations and disputes relating to existing agreements." A Court of Law proceeds on the footing that no power exists in the Courts to make contracts for people; and the parties must make their own contracts. The Courts reach their limit of power when they enforce contracts which the parties have made. An Industrial Tribunal is not so fettered and may create new obligations or modify contracts in the interests of industrial peace, to protect legitimate trade union activities and to prevent unfair practice or victimisation. We cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever. 12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this case. We do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.
### Response:
1
### Explanation:
In our opinion, these contentions are correct and should be upheldLearned counsel for the Appellant has rightly pointed out that even in respect of the completion or erection works the conclusion of the Appellate Tribunal is a complete non sequitur. First of all, the Directors Report was dated 10-7-1951 though the balance sheet of the company within which the report was dealing related to the period ending on 31-10-1950. The report naturally referred to such works as were completed on or before 10-7-1951. It should be obvious that the completion of erection works must be a gradual process, and while some of the erection works might have been completed by the end of 1950 or July 1951, some were still in the process of completionUnder their terms of employment temporary employees could be moved from one work to the other and the mere circumstance that they were employed in a production department for some time, even if true, did not make them permanent employees; nor did the circumstance that they enjoyed some of the benefits of permanent employees make them permanent. These are circumstances which have been completely ignored by the Labour Appellate TribunalThe respondents gave no evidence in support of the allegation that the appointments forms were taken from them for the purpose of humiliating or terrorising them, nor did the Appellate Tribunal come to any such finding. None of the affidavits filed on behalf of the respondents suggested, ever in a remote way, that the appellant company were restoring to any unfair practice or victimisation in the matter of the proposed dischargeWe have, however, pointed out that the Labour Appellate Tribunal gave no finding on the question whether the respondents were temporary employees or not. The only finding which the Tribunal gave related to a different matter, namely, the completion of erection worksIt is true that this Court does not sit upon the decisions of Industrials. Tribunals like an ordinary Court of appeal, and there must be special circumstances to justify the exercise of our special power under Art. 136 of the Constitution. In our opinion, such special circumstance exists in the present case where the Labour Appellate Tribunal has not directed its mind to the question to be decided on an application under S.22 of the Act and has passed an order on the basis of a somewhat irrelevant finding which has resulted in manifest injusticeWe cannot, however, accept the extreme position canvassed before us that an Industrial Tribunal can ignore altogether an existing for no rhyme or reason whatsoever12. It has been necessary for us to go into facts and circumstances of this case in greater detail than is usual with this Court, because the Labour Appellate Tribunal did not do so. The Act under which the Appellate Tribunal purported to pass its orders has now been repealed by the Industrial Disputes (Amendment and Miscellaneous Provisions,) Act, 1956. A question of some nicety as to the correct interpretation of S.33, Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, might have arisen if we had thought fit to remand this caseWe do not, however, think it necessary to pass an order of remand in this case and therefore abstain from expressing any opinion as to the correct position in law under sub-s.(2) of S.33 of that Act. No new facts need investigation in this case. Learned counsel for the parties have taken us through all the affidavits filed and the facts necessary for an enquiry under S.22 of the Act clearly emerge from those affidavits. We are satisfiedprima faciethat the respondents were temporary employees and were put on the spare list as and when the erection works were gradually completed. The appellant company have made out aprima faciecase for the permission which they have asked for and there is no suggestion even of any unfair practice or victimisation.
|
Raghunath Pradhani Vs. Damodra Mahapatra And Ors | the, private purchaser from the decre e holder has filed this appeal. 6. We are in agreement with the view of the High Court that it is not open to respondent 1, the decree-holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a mem ber of the Scheduled Tribe. Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3. Respondent 1 himself as ked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe. The permission from the competent aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property. Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale.The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not ex pressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950. It may be assumed that respondent 3 is a Bhotra. But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent mate rial that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes. Whether Bhotras fall within any of the sub-groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal. Much less can it be allowed to be raised before us. This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled Tribe. 7. Upon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the proper ty was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition conta ined in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder. Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority. Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant. The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction. It is elementary that what can be brought to sale in a court sale is the right, title and int erest of the judgment-debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. The judgment-debtor not having any saleable interest in the property at all on the date of the auction sale, there was not hing that respondent 2 could get in the auction sale which was held in execution of the money decree obtained by his father, respondent 1. The auction sale therefore cannot displace the title of the appellant which is the same thing as say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants title must prevail. It must follow that the auction sale is bad and must be set aside.There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment-debtor was that the property shall be sold for a sum of Rs 4, 000/-. In the private sale, the appellant purchased the property for Rs. 4, 000/- and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/-, the decree its elf being in the sum of Rs. 1, 000 odd and the highest bid at the auction being of Rs. 3, 000/- only. As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the pr operty under that sale. 8. In this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree-holder himself, apprised the Executing Court of that position. The failure, there, of the judgment-debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant. 9. | 1[ds]We are in agreement with the view of the High Court that it is not open to respondent 1, the decree-holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a mem ber of the Scheduled Tribe. Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3. Respondent 1 himself as ked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe. The permission from the competent aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property. Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale.The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not ex pressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950. It may be assumed that respondent 3 is a Bhotra. But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent mate rial that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes. Whether Bhotras fall within any of the sub-groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal. Much less can it be allowed to be raised before us. This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled TribeUpon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the proper ty was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition conta ined in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder. Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority. Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant. The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction. It is elementary that what can be brought to sale in a court sale is the right, title and int erest of the judgment-debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. The judgment-debtor not having any saleable interest in the property at all on the date of the auction sale, there was not hing that respondent 2 could get in the auction sale which was held in execution of the money decree obtained by his father, respondent 1. The auction sale therefore cannot displace the title of the appellant which is the same thing as say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants title must prevail. It must follow that the auction sale is bad and must be set aside.There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment-debtor was that the property shall be sold for a sum of Rs 4, 000/-. In the private sale, the appellant purchased the property for Rs. 4, 000/- and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/-, the decree its elf being in the sum of Rs. 1, 000 odd and the highest bid at the auction being of Rs. 3, 000/- only. As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the pr operty under that saleIn this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree-holder himself, apprised the Executing Court of that position. The failure, there, of the judgment-debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant. | 1 | 1,989 | 1,072 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
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the, private purchaser from the decre e holder has filed this appeal. 6. We are in agreement with the view of the High Court that it is not open to respondent 1, the decree-holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a mem ber of the Scheduled Tribe. Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3. Respondent 1 himself as ked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe. The permission from the competent aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property. Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale.The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not ex pressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950. It may be assumed that respondent 3 is a Bhotra. But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent mate rial that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes. Whether Bhotras fall within any of the sub-groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal. Much less can it be allowed to be raised before us. This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled Tribe. 7. Upon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the proper ty was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition conta ined in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder. Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority. Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant. The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction. It is elementary that what can be brought to sale in a court sale is the right, title and int erest of the judgment-debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. The judgment-debtor not having any saleable interest in the property at all on the date of the auction sale, there was not hing that respondent 2 could get in the auction sale which was held in execution of the money decree obtained by his father, respondent 1. The auction sale therefore cannot displace the title of the appellant which is the same thing as say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants title must prevail. It must follow that the auction sale is bad and must be set aside.There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment-debtor was that the property shall be sold for a sum of Rs 4, 000/-. In the private sale, the appellant purchased the property for Rs. 4, 000/- and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/-, the decree its elf being in the sum of Rs. 1, 000 odd and the highest bid at the auction being of Rs. 3, 000/- only. As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the pr operty under that sale. 8. In this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree-holder himself, apprised the Executing Court of that position. The failure, there, of the judgment-debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant. 9.
### Response:
1
### Explanation:
We are in agreement with the view of the High Court that it is not open to respondent 1, the decree-holder, to contend that respondent 3 whose property was put to sale in the execution proceedings was not a mem ber of the Scheduled Tribe. Respondent 1 filed his execution petition for the purpose of recovering the decretal dues by attachment and sale of the property belonging to one of the judgment debtors, respondent 3. Respondent 1 himself as ked the Executing Court to secure the permission of the competent authority for sale of the property on the ground that respondent 3 whose property was to be put to sale belonged to the Scheduled Tribe. The permission from the competent aut hority was later obtained by the appellant, with whom respondent 3 was negotiating for a private sale of his property. The permission which was granted by the R.D.O., Nowrangpur at the instance of the appellant was produced by respondent I in the execution proceedings as if the permission was granted in his favour for the sale by respondent 3 of his property. Respondent 1 cannot then be permitted to dispute that respondent 3 did not belong lo a Scheduled Tribe and therefore the permission of the competent authority was not needed to validate the sale.The contention that respondent 3 did not belong to a Scheduled Tribe was founded solely on the consideration that he belonged to the Bhotra tribe which is not ex pressly mentioned as on of the Scheduled Tribes in the schedule to the Constitution (Scheduled Tribes), order 1950. It may be assumed that respondent 3 is a Bhotra. But paragraph 2 of the Scheduled Tribes order, 1950 provides to the extent mate rial that the Tribes, or parts of, or groups within the Tribes specified in the Schedule to the order shall also be deemed to be Scheduled Tribes. Whether Bhotras fall within any of the sub-groups or the Scheduled Tribes enumerated in Part IX of the Schedule to the 1950 order is a question which could not have been permitted to be raised for the first time in the second appeal. Much less can it be allowed to be raised before us. This appeal, like the second appeal before the High Court, must therefore be disposed of on the basis that respondent 3 is a member of the Scheduled TribeUpon that footing, the appellant must succeed because after the R.D.O., Nowrangpur granted permission to sell the property on October 23, 1963, the proper ty was purchased by the appellant from respondent 3 on January 2, 1964. Prior to that sale the property was undoubtedly attached in execution proceedings on July 13, 1963 but the order of attachment was void, being contrary to the express inhibition conta ined in Clause 6 of Regulation No. 2 of 1956 read with Rule 4 made thereunder. Both Clause 6 and Rule 4 provide that no immovable property belonging to a member of the Scheduled Tribe is liable to be attached or sold except in accordance with the Permission granted by the competent authority. Under the registered sale, Ext. 4, executed by respondent 3 in favour of the appellant, the title to the property vested in the appellant. The appellant having become an owner of the property on account of the aforesaid private sale, respondent 3 had no saleable interest left in the property which could be put to sale in the court auction. It is elementary that what can be brought to sale in a court sale is the right, title and int erest of the judgment-debtor and therefore, the auction purchaser can get nothing more than that right, title and interest. The judgment-debtor not having any saleable interest in the property at all on the date of the auction sale, there was not hing that respondent 2 could get in the auction sale which was held in execution of the money decree obtained by his father, respondent 1. The auction sale therefore cannot displace the title of the appellant which is the same thing as say ing that as between the title of the appellant and the so called title of the auction purchaser, the appellants title must prevail. It must follow that the auction sale is bad and must be set aside.There is an additional reason why the auction sale is not valid By the permission granted by the R.D.O., Nowrangpur on October 23, 1963 for sale of the property, one of the conditions imposed on the judgment-debtor was that the property shall be sold for a sum of Rs 4, 000/-. In the private sale, the appellant purchased the property for Rs. 4, 000/- and therefore the condition of the permission was complied with. But the auction sale was held in satisfaction of the decretal dues which were far less than Rs. 4,000/-, the decree its elf being in the sum of Rs. 1, 000 odd and the highest bid at the auction being of Rs. 3, 000/- only. As the condition imposed by the R.D.O. regarding the price was violated by the auction sale, the auction purchaser cannot get a valid title to the pr operty under that saleIn this view, no question of res judicata can arise because the basic issue ill the appeal is as regards the validity of the auction sale in favour of respondent 2. The appellant claims through the judgment-debtor and neither the latter nor the decree-holder ever disputed that he, the judgment-debtor, was a member of the Scheduled Tribe. On the other hand both of them were conscious of the situation that the property could not be sold without the sanction of the R.D.O., Nowrangpur. The decree-holder himself, apprised the Executing Court of that position. The failure, there, of the judgment-debtor to raise any particular contention cannot operate as res judicata, actually or constructively, either against him or against the appellant.
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Union Of India Vs. D.M. Revri & Co | the machinery for nomination of an arbitrator, the arbitration agreement in clause (17) could still be enforced by the Court by appointing an arbitrator in a proceeding under section 20 of the Arbitration Act. But the position again changed and the Ministry of Food &Agriculture came into being as a result of integration of the Ministry of Food and the Ministry of Agriculture, with this change, namely, that the new Ministry of Food &Agriculture had two departments, one of Food and t he other of Agriculture and there was a Secretary incharge of each department. There were thus, after integration, two Secretaries in the Ministry of Food & Agriculture and the argument of the respondents was--and that argument found favour with the High Court--that this event rendered the arbitration agreement vague and uncertain, inasmuch as it did not specify which of the two Secretaries was to nominate the arbitrator "in his absolute discretion".7. Though this argument appears attractive at first sight, a little scrutiny will reveal that it is unsound. It is based on a highly technical and doctrinaire approach and is opposed to plain commonsense.it must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. I t would not be right while interpreting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents. The meaning of such a contract must be gathered by adopting a commonsense approach and it must not be allowed to be thwarted by a narrow pedantic and legalistic interpretation. Here, at the time when the arbitrator came to be nominated and the reference was made, there was a Ministry of Food &Agriculture and there was a Secretary in that Ministry, but the only difficulty, according to the High Court, was that there were. instead of one, two Secretaries and it could not be predicated as to which Secretary was intended to exercise the power of nominating an arbitrator. We do not think this difficulty is at all real. Let us consider, for a moment, why in clause ( 17), the power to nominate an arbitrator was conferred on the Secretary in the Ministry of Food &Agriculture and not on a Secretary in any other Ministry. The reason obviously was that at the date of the contract the Secretary in the Ministry of Food &Agriculture was the Officer dealing with the subject-matter of the contract. If this object and reason of the provision of clause (17) is kept in mind, it will become immediately clear that the "Secretary in the Ministry of Food & Agriculture" authorised to nominate an arbitrator was the Secretary incharge of the Department of Food who was concerned with the subject-matter of the contract. The Secretary incharge of the Department of Food filled the description "Secretary in the Ministry of Food & Agriculture" yen in clause (17). The respondents relied strongly on the use of the definite article the before the words "Secretary in the Ministry of Food & Agriculture" and urged that what the parties to the contract had in mind was not a Secretary in the Ministry of Food & Agriculture, but the Secretary in the Ministry of Food & Agriculture and that clearly postulated one definite Secretary in the Ministry of Food & Agriculture and not one of two Secretaries in that Ministry.8. This is, in our opinion, a hyper technical argument which seeks to make a fortress out of the dictionary and ignores the plain intendment of the contract. We fail to see why the Secretary in the Ministry of Food & Agriculture incharge of the Department of Food could not be described as the Secretary. He would be the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract and dearly and indubitably he would be the person intended by the parties to exercise the power of nominating the arbitrator. The parties to the contract obviously could not be expected to use the words "a Secretary in the Ministry of Food & Agriculture", because their intendment was not that any Secretary in the Ministry of Food &Agriculture should be entitled to exercise the power of nominating an arbitrator, but it should only be the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract. That is why the use of the definite article the. It is also significant to note that when the Secretary in charge of the Department of Food in the Ministry of Food & Agriculture nominated the arbitrator, the respondents did not raise any objection to the appointment of the arbitrator and participated in the arbitration proceedings without any protest. The respondents knew at that time that there were two Secretaries in the Ministry of Food and Agriculture and the appointment of the arbitrator was. made by the Secretary in charge of the Department of Food and yet they acquiesced in the appointment of the arbitrator and took part in the proceedings. This circumstance is also clearly indicative of the intendment of the parties that the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract should be the person entitled to nominate the arbitrator. Or else the respondents would have objected to the appointment of the arbitrator and declined to participate in the arbitration proceedings or at any rate, participated under protest. We are, therefore, of the view that the arbitrator was validly nominated by the Secretary in charge of the Department of Food in the Ministry of Food & Agriculture.This view renders it unnecessary for us to consider whether by participating in the proceedings before the arbitrator without objection or protest and taking the chance of obtaining an award in their favour, the respondents could be said to have waived the defect in the appointment of the arbitrator.9. | 1[ds]We fail to see why the Secretary in the Ministry of Foodincharge of the Department of Food could not be described as the Secretary. He would be the Secretary in the Ministry of Foodconcerned with theof the contract and dearly and indubitably he would be the person intended by the parties to exercise the power of nominating the arbitrator. The parties to the contract obviously could not be expected to use the words "a Secretary in the Ministry of Foodbecause their intendment was not that any Secretary in the Ministry of Food &Agriculture should be entitled to exercise the power of nominating an arbitrator, but it should only be the Secretary in the Ministry of Foodd with theof the contract. That is why the use of the definite article the. It is also significant to note that when the Secretary in charge of the Department of Food in the Ministry of Foodnominated the arbitrator, the respondents did not raise any objection to the appointment of the arbitrator and participated in the arbitration proceedings without any protest. The respondents knew at that time that there were two Secretaries in the Ministry of Food and Agriculture and the appointment of the arbitrator was. made by the Secretary in charge of the Department of Food and yet they acquiesced in the appointment of the arbitrator and took part in the proceedings. This circumstance is also clearly indicative of the intendment of the parties that the Secretary in the Ministry of Foodd with theof the contract should be the person entitled to nominate the arbitrator. Or else the respondents would have objected to the appointment of the arbitrator and declined to participate in the arbitration proceedings or at any rate, participated under protest. We are, therefore, of the view that the arbitrator was validly nominated by the Secretary in charge of the Department of Food in the Ministry of Foodview renders it unnecessary for us to consider whether by participating in the proceedings before the arbitrator without objection or protest and taking the chance of obtaining an award in their favour, the respondents could be said to have waived the defect in the appointment of the arbitrator. | 1 | 3,487 | 385 | ### 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 machinery for nomination of an arbitrator, the arbitration agreement in clause (17) could still be enforced by the Court by appointing an arbitrator in a proceeding under section 20 of the Arbitration Act. But the position again changed and the Ministry of Food &Agriculture came into being as a result of integration of the Ministry of Food and the Ministry of Agriculture, with this change, namely, that the new Ministry of Food &Agriculture had two departments, one of Food and t he other of Agriculture and there was a Secretary incharge of each department. There were thus, after integration, two Secretaries in the Ministry of Food & Agriculture and the argument of the respondents was--and that argument found favour with the High Court--that this event rendered the arbitration agreement vague and uncertain, inasmuch as it did not specify which of the two Secretaries was to nominate the arbitrator "in his absolute discretion".7. Though this argument appears attractive at first sight, a little scrutiny will reveal that it is unsound. It is based on a highly technical and doctrinaire approach and is opposed to plain commonsense.it must be remembered that a contract is a commercial document between the parties and it must be interpreted in such a manner as to give efficacy to the contract rather than to invalidate it. I t would not be right while interpreting a contract, entered into between two lay parties, to apply strict rules of construction which are ordinarily applicable to a conveyance and other formal documents. The meaning of such a contract must be gathered by adopting a commonsense approach and it must not be allowed to be thwarted by a narrow pedantic and legalistic interpretation. Here, at the time when the arbitrator came to be nominated and the reference was made, there was a Ministry of Food &Agriculture and there was a Secretary in that Ministry, but the only difficulty, according to the High Court, was that there were. instead of one, two Secretaries and it could not be predicated as to which Secretary was intended to exercise the power of nominating an arbitrator. We do not think this difficulty is at all real. Let us consider, for a moment, why in clause ( 17), the power to nominate an arbitrator was conferred on the Secretary in the Ministry of Food &Agriculture and not on a Secretary in any other Ministry. The reason obviously was that at the date of the contract the Secretary in the Ministry of Food &Agriculture was the Officer dealing with the subject-matter of the contract. If this object and reason of the provision of clause (17) is kept in mind, it will become immediately clear that the "Secretary in the Ministry of Food & Agriculture" authorised to nominate an arbitrator was the Secretary incharge of the Department of Food who was concerned with the subject-matter of the contract. The Secretary incharge of the Department of Food filled the description "Secretary in the Ministry of Food & Agriculture" yen in clause (17). The respondents relied strongly on the use of the definite article the before the words "Secretary in the Ministry of Food & Agriculture" and urged that what the parties to the contract had in mind was not a Secretary in the Ministry of Food & Agriculture, but the Secretary in the Ministry of Food & Agriculture and that clearly postulated one definite Secretary in the Ministry of Food & Agriculture and not one of two Secretaries in that Ministry.8. This is, in our opinion, a hyper technical argument which seeks to make a fortress out of the dictionary and ignores the plain intendment of the contract. We fail to see why the Secretary in the Ministry of Food & Agriculture incharge of the Department of Food could not be described as the Secretary. He would be the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract and dearly and indubitably he would be the person intended by the parties to exercise the power of nominating the arbitrator. The parties to the contract obviously could not be expected to use the words "a Secretary in the Ministry of Food & Agriculture", because their intendment was not that any Secretary in the Ministry of Food &Agriculture should be entitled to exercise the power of nominating an arbitrator, but it should only be the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract. That is why the use of the definite article the. It is also significant to note that when the Secretary in charge of the Department of Food in the Ministry of Food & Agriculture nominated the arbitrator, the respondents did not raise any objection to the appointment of the arbitrator and participated in the arbitration proceedings without any protest. The respondents knew at that time that there were two Secretaries in the Ministry of Food and Agriculture and the appointment of the arbitrator was. made by the Secretary in charge of the Department of Food and yet they acquiesced in the appointment of the arbitrator and took part in the proceedings. This circumstance is also clearly indicative of the intendment of the parties that the Secretary in the Ministry of Food & Agriculture concerned with the subject-matter of the contract should be the person entitled to nominate the arbitrator. Or else the respondents would have objected to the appointment of the arbitrator and declined to participate in the arbitration proceedings or at any rate, participated under protest. We are, therefore, of the view that the arbitrator was validly nominated by the Secretary in charge of the Department of Food in the Ministry of Food & Agriculture.This view renders it unnecessary for us to consider whether by participating in the proceedings before the arbitrator without objection or protest and taking the chance of obtaining an award in their favour, the respondents could be said to have waived the defect in the appointment of the arbitrator.9.
### Response:
1
### Explanation:
We fail to see why the Secretary in the Ministry of Foodincharge of the Department of Food could not be described as the Secretary. He would be the Secretary in the Ministry of Foodconcerned with theof the contract and dearly and indubitably he would be the person intended by the parties to exercise the power of nominating the arbitrator. The parties to the contract obviously could not be expected to use the words "a Secretary in the Ministry of Foodbecause their intendment was not that any Secretary in the Ministry of Food &Agriculture should be entitled to exercise the power of nominating an arbitrator, but it should only be the Secretary in the Ministry of Foodd with theof the contract. That is why the use of the definite article the. It is also significant to note that when the Secretary in charge of the Department of Food in the Ministry of Foodnominated the arbitrator, the respondents did not raise any objection to the appointment of the arbitrator and participated in the arbitration proceedings without any protest. The respondents knew at that time that there were two Secretaries in the Ministry of Food and Agriculture and the appointment of the arbitrator was. made by the Secretary in charge of the Department of Food and yet they acquiesced in the appointment of the arbitrator and took part in the proceedings. This circumstance is also clearly indicative of the intendment of the parties that the Secretary in the Ministry of Foodd with theof the contract should be the person entitled to nominate the arbitrator. Or else the respondents would have objected to the appointment of the arbitrator and declined to participate in the arbitration proceedings or at any rate, participated under protest. We are, therefore, of the view that the arbitrator was validly nominated by the Secretary in charge of the Department of Food in the Ministry of Foodview renders it unnecessary for us to consider whether by participating in the proceedings before the arbitrator without objection or protest and taking the chance of obtaining an award in their favour, the respondents could be said to have waived the defect in the appointment of the arbitrator.
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SEVOKE PROPERTIES PVT. LTD Vs. WEST BENGAL STATE ELETRICTIY DISTRIBUTION COMPANY LIMITED | absence of such a notice, the suit, it was held, would not be maintainable. 15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106. 16. In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P (1995) 5 SCC 698 , where this Court held: 8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mullas Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in the sense of retaining possession... In Park Street Properties Private Limited v Dipak Kumar Singh (2016) 9 SCC 268 , the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase in the absence of a contract to the contrary, this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub- lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. In Nopany Investments (P) Ltd v Santokh Singh (HUF) (2008) 2 SCC 728 , a two judge Bench of this Court has held : 22…In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant. | 1[ds]13. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present case, the indenture of lease has not been registered. In consequence, the contents of the indenture would be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act 1908 6 . The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondentIn the judgment of this Court in Satish Chand Makhan (supra), the father of the plaintiff had leased open land to the defendant for a period of five years under a registered deed of lease. After the expiry of the initial term, there was a draft agreement for renewal for a further period of nine years, which, however, was not registered under Section 17(1)(d) of the Registration Act 1908. The plaintiff served a notice for the determination of the tenancy on the ground of forfeiture under Section 111(g) and brought a suit for ejectment. The High Court held that the lease had been determined by efflux of time under Section 111(a) upon the expiry of the term of nine years and hence, no notice under Section 106 was required for the determination of the lease. While determining the correctness of the judgment of the High Court, this Court observed that the defendants have nowhere admitted that the lease was for a specific term of nine years . On the contrary, the defendants had pleaded that they were tenants holding over under Section 116 of the TP Act. This Court held that the unregistered draft lease agreement was inadmissible in evidence under Section 49 of the Registration Act except for a collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106The above judgment is clearly distinguishable. Since the agreement of sub-lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. | 1 | 2,998 | 858 | ### 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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absence of such a notice, the suit, it was held, would not be maintainable. 15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106. 16. In coming to this conclusion, we are fortified by the decision of this Court in R V Bhupal Prasad v State of A P (1995) 5 SCC 698 , where this Court held: 8.Tenant at sufferance is one who comes into possession of land by lawful title, but who holds it by wrong after the termination of the term or expiry of the lease by efflux of time. The tenant at sufferance is, therefore, one who wrongfully continues in possession after the extinction of a lawful title. There is little difference between him and a trespasser. In Mullas Transfer of Property Act (7th Edn.) at page 633, the position of tenancy at sufferance has been stated thus: A tenancy at sufferance is merely a fiction to avoid continuance in possession operating as a trespass. It has been described as the least and lowest interest which can subsist in reality. It, therefore, cannot be created by contract and arises only by implication of law when a person who has been in possession under a lawful title continues in possession after that title has been determined, without the consent of the person entitled. A tenancy at sufferance does not create the relationship of landlord and tenant. At page 769, it is stated regarding the right of a tenant holding over thus: The act of holding over after the expiration of the term does not necessarily create a tenancy of any kind. If the lessee remains in possession after the determination of the term, the common law rule is that he is a tenant on sufferance. The expression holding over is used in the sense of retaining possession... In Park Street Properties Private Limited v Dipak Kumar Singh (2016) 9 SCC 268 , the appellant to whom premises had been let out with a right to sub-let them entered into a sub-tenancy in favour of the respondent. The agreement by which the sub-tenancy was created was unregistered. The appellant issued a notice under Section 106 of the TP Act terminating the monthly sub-tenancy and then instituted a suit for recovery of possession. The trial court held that since the sub-lease was unregistered, it was inadmissible in evidence and none of its terms, including clause 6 which empowered the landlord to serve a notice upon default in the payment of rent could be looked into. Hence the notice under Section 106 was held to be valid. The High Court allowed the appeal and remanded the proceedings to the trial court. In appeal, this Court held that clause 6 of the agreement was contrary to Section 106. While Section 106 contains the phrase in the absence of a contract to the contrary, this must refer to a valid contract. This Court held that in the absence of a registered agreement, the court is not precluded from determining the factum of tenancy from other evidence on the record including the conduct of parties. However, in the absence of registration, Section 106 created a fiction of tenancy from month to month, the termination of which was governed by Section 106. Consequently, the judgment of the High Court was set aside and the judgment of the trial court was restored. The above judgment is clearly distinguishable. Since the agreement of sub- lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance. In Nopany Investments (P) Ltd v Santokh Singh (HUF) (2008) 2 SCC 728 , a two judge Bench of this Court has held : 22…In any view of the matter, it is well settled that filing of an eviction suit under the general law itself is a notice to quit on the tenant. Therefore, we have no hesitation to hold that no notice to quit was necessary under Section 106 of the Transfer of Property Act in order to enable the respondent to get a decree of eviction against the appellant.
### Response:
1
### Explanation:
13. In terms of the provisions of Section 107, a lease of immovable property for a term exceeding one year can only be made by a registered instrument. Admittedly, in the present case, the indenture of lease has not been registered. In consequence, the contents of the indenture would be inadmissible in evidence for the purpose of determining the terms of the contract between the parties. This is the plain consequence of the provisions of Sections 17 and 49 of the Registration Act 1908 6 . The only purpose for which the lease can be looked at is for assessing the nature and character of the possession of the respondentIn the judgment of this Court in Satish Chand Makhan (supra), the father of the plaintiff had leased open land to the defendant for a period of five years under a registered deed of lease. After the expiry of the initial term, there was a draft agreement for renewal for a further period of nine years, which, however, was not registered under Section 17(1)(d) of the Registration Act 1908. The plaintiff served a notice for the determination of the tenancy on the ground of forfeiture under Section 111(g) and brought a suit for ejectment. The High Court held that the lease had been determined by efflux of time under Section 111(a) upon the expiry of the term of nine years and hence, no notice under Section 106 was required for the determination of the lease. While determining the correctness of the judgment of the High Court, this Court observed that the defendants have nowhere admitted that the lease was for a specific term of nine years . On the contrary, the defendants had pleaded that they were tenants holding over under Section 116 of the TP Act. This Court held that the unregistered draft lease agreement was inadmissible in evidence under Section 49 of the Registration Act except for a collateral purpose of proving the nature and character of the possession of the defendants. The terms of the lease did not constitute a collateral purpose. Consequently, the unregistered draft lease was held to be inadmissible to create a valid lease for a renewed term of nine years. In this background, this Court held that the defendants were tenants holding over under Section 116 in which event it was necessary for the plaintiff to serve a notice under Section 106. In the absence of such a notice, the suit, it was held, would not be maintainable15. Mr Sundaram has sought to distinguish this decision, since in that case this Court found that the defendant was a tenant holding over within the meaning of Section 116. We find merit in the submission which has been urged by Mr Sundaram. In the case before this Court noted above, the defendants had not admitted that the term of the lease was for a period of nine years. This was noted by the Court, as we have extracted earlier. On the contrary, we find that in the present case, there is an express admission on the part of the defendants that they were in occupation under the lease agreement for a period of fifteen years with effect from 1981 and that the period of lease expired on 24 May 1996. Such a specific admission on the part of the defendants is contained in paragraph 22 of the written statement. Under Section 111(a), a lease of immovable property determines by efflux of time limited thereby. Once this be the position, there can be no manner of doubt that the position of the respondent on the expiration of the lease was of a tenant at sufferance. In the circumstances, there was no necessity of a notice for the termination of the lease under the provisions of Section 106. The respondent having squarely admitted in its written statement that it was in occupation for a term of fifteen years, that term having expired, the lease stood determined by efflux of time. Once the lease stood determined by efflux of time, there was no necessity for a notice of termination under Section 106The above judgment is clearly distinguishable. Since the agreement of sub-lease in Park Street Properties (supra) was unregistered, clause 6 which governed the sub-lease could not be looked into. In the present case, the indenture of lease being unregistered, the contents of the instrument are inadmissible in evidence. However, it is evident from the clear admission in the written statement that the appellant accepted and proceeded on the basis that the period of lease expired on 24 May 1996. Thereafter, the position of the appellant is of a tenant at sufferance.
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Bhau Ram Vs. Janak Singh | dismissed the suit filed by Reshmoo Devi for possession as barred by limitation. The appellant herein, who was substituted as L.R., filed second appeal being R.S.A. No.113 of 1988 before the High Court which was allowed by the High Court on 25.05.2000. (h) Against that order, Kamla Devi & Ors. filed special leave petition before this Court which was dismissed. (i) Involving the same issue, Attar Singh filed a Suit being Suit No. 424/1 of 99/97 in the Court of sub-Judge-IV, Shimla which was dismissed for default on 23.02.2001 but the same was restored vide order dated 14.08.2002. He again filed a Civil Suit No. 10/1 of 2004 before the Civil Judge (Jr. Division-II) Rohru, Shimla for possession of the suit land belonging to Reshmoo Devi. During the course of proceedings, the appellant herein filed an application under Order VII Rule 11 read with Section 151 of CPC for rejection of the plaint on certain grounds. By order dated 17.11.2004, the Civil Judge allowed the application and dismissed the suit filed by Attar Singh. (j) Against the said order, Attar Singh filed F.A. No. 90-S/13 of 2005 before the District Judge (Forest), Shimla. After the death of Attar Singh, Kamla Devi was brought on record as his legal representative. Vide order dated 31.07.2009, the District Judge (Forest) allowed the appeal. Challenging the said order, the appellant herein and his sister, Kular Mani, filed R.S.A. No. 501 of 2009 before the High Court. By the impugned order dated 20.09.2010, the High Court dismissed the appeal. Against the said order, the appellant herein filed an appeal by way of special leave petition before this Court. 4) Heard Ms. Radhika Gautam, learned counsel for the appellant and Mr. Sudhir Chandra, learned senior counsel for respondent No.1 and Mr. T. V. Ratnam, learned counsel for respondent No.2. 5) The only point for consideration in this appeal is whether the High Court is justified in confirming the decision of the lower appellate Court and remitting the matter to trial Court for fresh consideration of all the issues. 6) In order to ascertain an answer for the above question, we have to consider whether the application under Order VII Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial Court allowed the application of the appellant/defendant No.1 filed under Order VII Rule 11 CPC on the ground that the plaint was barred under the provisions of Order IX Rules 8 & 9 CPC and Order XXIII Rule 1 (3) & 4 (b) of CPC. The said order of the trial Court was set aside by the first appellate Court on the ground that the trial Court had taken the pleas from the written statement of the defendant which is not permissible under Order VII Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate Court. 7) It is relevant to point out the findings of the trial Court particularly with reference to the Suit No. 424/1 of 99/97 which was dismissed for default had been restored by the trial Court even at the time of filing of the application by the defendant under Order VII Rule 11 CPC and it is also brought to our notice that the said proceedings are going on. In view of the same, the provisions of Order IX Rules 8 and 9 CPC are not applicable to the said suit. Even otherwise, the relief sought in the suit (which was earlier dismissed for default) and in the present suit are with regard to different properties. For the same reasons, the provisions of Order XXIII Rule 1 (3) & 4 (b) of CPC are not applicable. 8) The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183 , Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59 , Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614 , Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100 , Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 , Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557 ]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149. 9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Court. 10) In the light of the above discussion and in view of the settled legal position, as mentioned above, we are of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment. | 0[ds]9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgmentAs rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment | 0 | 1,895 | 333 | ### 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:
dismissed the suit filed by Reshmoo Devi for possession as barred by limitation. The appellant herein, who was substituted as L.R., filed second appeal being R.S.A. No.113 of 1988 before the High Court which was allowed by the High Court on 25.05.2000. (h) Against that order, Kamla Devi & Ors. filed special leave petition before this Court which was dismissed. (i) Involving the same issue, Attar Singh filed a Suit being Suit No. 424/1 of 99/97 in the Court of sub-Judge-IV, Shimla which was dismissed for default on 23.02.2001 but the same was restored vide order dated 14.08.2002. He again filed a Civil Suit No. 10/1 of 2004 before the Civil Judge (Jr. Division-II) Rohru, Shimla for possession of the suit land belonging to Reshmoo Devi. During the course of proceedings, the appellant herein filed an application under Order VII Rule 11 read with Section 151 of CPC for rejection of the plaint on certain grounds. By order dated 17.11.2004, the Civil Judge allowed the application and dismissed the suit filed by Attar Singh. (j) Against the said order, Attar Singh filed F.A. No. 90-S/13 of 2005 before the District Judge (Forest), Shimla. After the death of Attar Singh, Kamla Devi was brought on record as his legal representative. Vide order dated 31.07.2009, the District Judge (Forest) allowed the appeal. Challenging the said order, the appellant herein and his sister, Kular Mani, filed R.S.A. No. 501 of 2009 before the High Court. By the impugned order dated 20.09.2010, the High Court dismissed the appeal. Against the said order, the appellant herein filed an appeal by way of special leave petition before this Court. 4) Heard Ms. Radhika Gautam, learned counsel for the appellant and Mr. Sudhir Chandra, learned senior counsel for respondent No.1 and Mr. T. V. Ratnam, learned counsel for respondent No.2. 5) The only point for consideration in this appeal is whether the High Court is justified in confirming the decision of the lower appellate Court and remitting the matter to trial Court for fresh consideration of all the issues. 6) In order to ascertain an answer for the above question, we have to consider whether the application under Order VII Rule 11 CPC filed by the defendant can be decided merely on the basis of the plaint and whether the other materials filed by the defendant in support of the application can also be looked into. The trial Court allowed the application of the appellant/defendant No.1 filed under Order VII Rule 11 CPC on the ground that the plaint was barred under the provisions of Order IX Rules 8 & 9 CPC and Order XXIII Rule 1 (3) & 4 (b) of CPC. The said order of the trial Court was set aside by the first appellate Court on the ground that the trial Court had taken the pleas from the written statement of the defendant which is not permissible under Order VII Rule 11 CPC and the High Court in the second appeal confirmed the judgment of the first appellate Court. 7) It is relevant to point out the findings of the trial Court particularly with reference to the Suit No. 424/1 of 99/97 which was dismissed for default had been restored by the trial Court even at the time of filing of the application by the defendant under Order VII Rule 11 CPC and it is also brought to our notice that the said proceedings are going on. In view of the same, the provisions of Order IX Rules 8 and 9 CPC are not applicable to the said suit. Even otherwise, the relief sought in the suit (which was earlier dismissed for default) and in the present suit are with regard to different properties. For the same reasons, the provisions of Order XXIII Rule 1 (3) & 4 (b) of CPC are not applicable. 8) The law has been settled by this Court in various decisions that while considering an application under Order VII Rule 11 CPC, the Court has to examine the averments in the plaint and the pleas taken by the defendants in its written statements would be irrelevant. [vide C. Natrajan vs. Ashim Bai and Another, (2007) 14 SCC 183 , Ram Prakash Gupta vs. Rajiv Kumar Gupta and Others, (2007) 10 SCC 59 , Hardesh Ores (P) Ltd. vs. Hede and Company, (2007) 5 SCC 614 , Mayar (H.K.) Ltd. and Others vs. Owners & Parties, Vessel M.V. Fortune Express and others, (2006) 3 SCC 100 , Sopan Sukhdeo Sable and Others vs. Assistant Charity Commissioner and Others, (2004) 3 SCC 137 , Saleem Bhai and Others vs. State of Maharashtra and Others, (2003) 1 SCC 557 ]. The above view has been once again reiterated in the recent decision of this Court in The Church of Christ Charitable Trust & Educational Charitable Society, represented by its Chairman vs. M/s Ponniamman Educational Trust represented by its Chairperson/Managing Trustee, 2012 (6) JT 149. 9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Court. 10) In the light of the above discussion and in view of the settled legal position, as mentioned above, we are of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment.
### Response:
0
### Explanation:
9) As rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgmentAs rightly pointed out by learned counsel for the respondents, the questions of law, as raised in the second appeal, before the High Court are no longer needed to be decided in view of the settled law that only the averments in the plaint can be looked into while deciding the application under Order VII Rule 11. This aspect has been rightly dealt with by the High Courtare of the view that the High Court is fully justified in confirming the decision of the appellate Court remitting the matter to the trial Court for consideration of all the issues. In view of the fact that the suit is pending from 2002, we direct the trial Court to decide the suit in its entirety considering all the issues, after affording adequate opportunity to both the parties, and dispose of the same within a period of six months from the date of receipt of copy of this judgment
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Ram Sanjiwan Singh & Others Vs. State of Bihar | because of the firing the barber had run away. It was tried to be suggested that this very barber used to shave the deceased twice a week. That may be so. But it was not clear as to who was the barber who shaved the deceased on that fateful evening nor was anything pointed out in the cross-examination of Sunil Singh PW 5 that he knew the name of the barber. But even otherwise non-examination of the barber did not affect the core of the prosecution case against the accused which has stood well established on record by the eyewitness account of the aforesaid eyewitnesses PWs 1, 3, 4 and 5. 17. It was next contended that the case diary was tampered with. Even this submission cannot be accepted for the simple reason that the evidence of Prayag Narain PW 44 and other police witnesses clearly showed that four copies were taken out in connection with the entries in the police diary. The evidence of PW 44 Prayag Narain had shown that the case diary was written in the prescribed form. There was a connective number of the case diary. In that case the serial number of the case diary was not connective because that had been written in four copies instead of three. This part of the evidence has stood well established on record and consequently even this contention cannot be of any use of the appellants to show that the recording of the FIR was in any way ante-timed18. It was next contended that these alleged eyewitnesses had bad antecedents. That might be so. However if their presence on the spot was natural and they could witness what happened on spot it could not be said that they were necessarily deposing falsely about what they saw on spot. A faint attempt was tried to be made that if the assault was mounted from a distance of one foot, as one of the witnesses stated, the injuries found on the dead body would have been more pronounced. This submission loses its importance for the simple reason that witness Gazraj Singh PW 3 had deposed that accused Moti Lal Tiwary had fired from a distance of 1 or 1/2 or 2 metres and Malkit had fired from 1 metre and other people were firing from a distance of 2 or 3 metres. This part of the evidence has well stood the test of cross-examination and could clearly support the prosecution version regarding the finding of the firearm injuries on the deceased. In this connection it has also to be kept in view that PW 5 Sunil Singh had stated that even earlier an attempt was made to murder the deceased. Under these circumstances if the deceased had kept himself in the company of his bodyguards as well as his near relatives like Sunil Singh PW 5, his grandson and Shankar Singh PW 4, his nephew it could not be said that this was an unnatural conduct. 19. It was then submitted that in the inquest report the names of the assailants were not shown. It is obvious that there was no column in the inquest report about the names of the assailants and there was no occasion for anyone to mention the names of the assailants in the inquest report. It was then submitted that Dr Saroj Kumar Das PW 33 had stated that witness Shankar Singh had brought the dead body and he had not stated the name of Sunil. This appeared to be an omission as Sunils presence was clearly deposed to by PW 44 who got recorded his fardbeyan and once Sunils evidence that he accompanied the deceased to the hospital is found believable and has well stood the test of cross-examination the non-mentioning of the name of Sunil by Dr S.K. Das would not make any difference and would pale into insignificance. For all these reasons, therefore, these appeals are liable to be dismissed. These were the only contentions and as there is no substance in them, this result is inevitable. Consequently so far as Appellant 1 Accused 10 Moti Lal Tiwary, Appellant 5 Accused 4 Malkit Singh and Appellant 7 Accused 6 Ganesh Gwala are concerned, their Criminal Appeal No. 388 of 1985 is liable to be dismissed..20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored. | 1[ds]20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored | 1 | 7,182 | 316 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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because of the firing the barber had run away. It was tried to be suggested that this very barber used to shave the deceased twice a week. That may be so. But it was not clear as to who was the barber who shaved the deceased on that fateful evening nor was anything pointed out in the cross-examination of Sunil Singh PW 5 that he knew the name of the barber. But even otherwise non-examination of the barber did not affect the core of the prosecution case against the accused which has stood well established on record by the eyewitness account of the aforesaid eyewitnesses PWs 1, 3, 4 and 5. 17. It was next contended that the case diary was tampered with. Even this submission cannot be accepted for the simple reason that the evidence of Prayag Narain PW 44 and other police witnesses clearly showed that four copies were taken out in connection with the entries in the police diary. The evidence of PW 44 Prayag Narain had shown that the case diary was written in the prescribed form. There was a connective number of the case diary. In that case the serial number of the case diary was not connective because that had been written in four copies instead of three. This part of the evidence has stood well established on record and consequently even this contention cannot be of any use of the appellants to show that the recording of the FIR was in any way ante-timed18. It was next contended that these alleged eyewitnesses had bad antecedents. That might be so. However if their presence on the spot was natural and they could witness what happened on spot it could not be said that they were necessarily deposing falsely about what they saw on spot. A faint attempt was tried to be made that if the assault was mounted from a distance of one foot, as one of the witnesses stated, the injuries found on the dead body would have been more pronounced. This submission loses its importance for the simple reason that witness Gazraj Singh PW 3 had deposed that accused Moti Lal Tiwary had fired from a distance of 1 or 1/2 or 2 metres and Malkit had fired from 1 metre and other people were firing from a distance of 2 or 3 metres. This part of the evidence has well stood the test of cross-examination and could clearly support the prosecution version regarding the finding of the firearm injuries on the deceased. In this connection it has also to be kept in view that PW 5 Sunil Singh had stated that even earlier an attempt was made to murder the deceased. Under these circumstances if the deceased had kept himself in the company of his bodyguards as well as his near relatives like Sunil Singh PW 5, his grandson and Shankar Singh PW 4, his nephew it could not be said that this was an unnatural conduct. 19. It was then submitted that in the inquest report the names of the assailants were not shown. It is obvious that there was no column in the inquest report about the names of the assailants and there was no occasion for anyone to mention the names of the assailants in the inquest report. It was then submitted that Dr Saroj Kumar Das PW 33 had stated that witness Shankar Singh had brought the dead body and he had not stated the name of Sunil. This appeared to be an omission as Sunils presence was clearly deposed to by PW 44 who got recorded his fardbeyan and once Sunils evidence that he accompanied the deceased to the hospital is found believable and has well stood the test of cross-examination the non-mentioning of the name of Sunil by Dr S.K. Das would not make any difference and would pale into insignificance. For all these reasons, therefore, these appeals are liable to be dismissed. These were the only contentions and as there is no substance in them, this result is inevitable. Consequently so far as Appellant 1 Accused 10 Moti Lal Tiwary, Appellant 5 Accused 4 Malkit Singh and Appellant 7 Accused 6 Ganesh Gwala are concerned, their Criminal Appeal No. 388 of 1985 is liable to be dismissed..20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored.
### Response:
1
### Explanation:
20. However, so far as Criminal Appeal No. 387 of 1985 by accused Ram Sanjiwan Singh is concerned, as we have noted earlier, his acquittal under Section 302 IPC read with Section 34 IPC has stood confirmed. The learned Sessions Judge had imposed on him for that (sic) offence sentence to suffer rigorous imprisonment for seven years. In his appeal, however, pursuant to the notice of enhancement, the High Court thought it fit to enhance his sentence to life imprisonment. To that extent the decision of the High Court seems to be inconsistent. When the High Court held that accused Ram Sanjiwan Singh had not committed offence of murder and, therefore, as a logical corollary he was not liable to be sentenced to life imprisonment, it is difficult to appreciate how the same sentence of life imprisonment could be imposed on him by enhancing his sentence under Section 304 Part I. It is now well settled that imposing of sentence is in the realm of discretion of the court and unless this sentence is found to be grossly inadequate the appellate court would not be justified in interfering with the discretionary order of sentence. On the facts of the present case, it may not be said that the sentence of seven years rigorous imprisonment as imposed by the trial court was grossly inadequate. Consequently the Criminal Appeal No. 387 of 1985 filed by Ram Sanjiwan Singh will have to be partly allowed. While maintaining his conviction for an offence under Section 304 Part I, his sentence of life imprisonment as enhanced by the High Court will stand set aside and instead the sentence of seven years rigorous imprisonment as imposed by the learned trial Judge will stand restored
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State of Punjab Vs. Madan Singh & Others | K.S. Hegde, J.1. The question of law to be decided in these appeals by certificate, arising from two writ petitions filed by some of the respondents in these appeals in the High Court of Punjab and Haryana, are more or less similar to those which we have decided in State of Haryana, etc., etc. v. Shamsher Jang Bahadur, etc., etc. (Civil Appeals Nos. 1639-1641 of 1968; 31, 1279 and 2227 of 1969), since reported in [1972 - II L.L.J. 186] (supra).2. For deciding those questions, it is sufficient if we refer to the case of the writ petitioner, Madan Singh. Before doing so it is necessary to refer to the reliefs asked for by the writ petitioners. They had prayed for issuance of a proper writ, order or direction to annual the executive instructions by which the Government of Punjab in 1950 prescribed a departmental test as a condition precedent for considering the promotion of clerks to the post of assistants, as according to the writ petitioners those instructions were not based on any authority of law. They had also asked for consequential direction to the State of Punjab to redetermine the seniority of the petitioners on the basis of Financial Commissioners (Punjab) Subordinate Service Rules, 1943 (to be hereinafter referred to as the Rules) framed under S.241 of the Government of India Act, 1935. The High Court of Punjab and Haryana has accepted those writ petitions and set aside the orders of reversion of the petitioners, made solely on the ground of non-passing the departmental test. It has directed, that the seniority of the writ petitioners in their parent State, State of Punjab and their subsequent seniority in the United Punjab should be determined in accordance with the principles laid down in its judgment.3. Now let us examine the case of Madan Singh. Madan Singh joined the Financial Commissioners office in Lahore before the partition of India. As per Rule 5(e) of the Rules, anyone could be appointed as an assistant if he possesses sufficient experience of the rules and regulations and was capable of putting up intelligent notes and drafts. Rule 6 provided that the post of an assistant could be filled up by promotion from among the clerks in the Financial Commissioners office likely to make a good assistant. It is not denied that under the rules no clerk had to pass an examination or a test before being considered for promotion as an assistant. On June 29, 1950, the Revenue Secretary to the Financial Commissioner, Punjab, issued an Office Order No. 42 of 1950, prescribing a test for those who are working as senior clerks and those who are officiating as assistants in order to guide the making of promotions to the post of assistants. The office order stated that the officials who refused to take the test or failed to qualify in it "will not be deemed eligible for promotion". This office order was modified from time to time. But we are not concerned with those modifications in these appeals. Under an office order, dated June 30, 1955, it was directed that the seniority of assistants would be counted from the date of actual promotion to the rank and not from the date of passing the test. Madan Singh had been promoted as an assistant earlier. He was reverted to make room for those who had passed the qualifying test. Similar is the position of other petitioners.4. For the reasons we have already mentioned in State of Haryana etc. v. Shamsher Jang Bahadur etc. (Civil Appeals Nos. 1639 to 1641 of 1968, 31, 1279 and 2227 of 1969) since reported in [1972 - II L.L.J. 186], (supra), we agree with the High Court that the executive instructions issued by the State Government are void as they amount to an alteration of the rules prescribed under S.241 of the Government of India Act.5. It was urged on behalf of the State that the High Court should not have granted any relief in the writ petitions as the petitioners were guilty of laches inasmuch as they approached the Court after a long delay. This contention does not appear to have been urged before the High Court. The High Court having exercised its discretion in granting the reliefs asked for, we see no reason to interfere with its discretion. | 0[ds]4. For the reasons we have already mentioned in State of Haryana etc. v. Shamsher Jang Bahadur etc. (Civil Appeals Nos. 1639 to 1641 of 1968, 31, 1279 and 2227 of 1969) since reported in [1972II L.L.J. 186], (supra), we agree with the High Court that the executive instructions issued by the State Government are void as they amount to an alteration of the rules prescribed under S.241 of the Government of India Act.It was urged on behalf of the State that the High Court should not have granted any relief in the writ petitions as the petitioners were guilty of laches inasmuch as they approached the Court after a long delay.This contention does not appear to have been urged before the High Court. The High Court having exercised its discretion in granting the reliefs asked for, we see no reason to interfere with its discretion. | 0 | 811 | 168 | ### 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:
K.S. Hegde, J.1. The question of law to be decided in these appeals by certificate, arising from two writ petitions filed by some of the respondents in these appeals in the High Court of Punjab and Haryana, are more or less similar to those which we have decided in State of Haryana, etc., etc. v. Shamsher Jang Bahadur, etc., etc. (Civil Appeals Nos. 1639-1641 of 1968; 31, 1279 and 2227 of 1969), since reported in [1972 - II L.L.J. 186] (supra).2. For deciding those questions, it is sufficient if we refer to the case of the writ petitioner, Madan Singh. Before doing so it is necessary to refer to the reliefs asked for by the writ petitioners. They had prayed for issuance of a proper writ, order or direction to annual the executive instructions by which the Government of Punjab in 1950 prescribed a departmental test as a condition precedent for considering the promotion of clerks to the post of assistants, as according to the writ petitioners those instructions were not based on any authority of law. They had also asked for consequential direction to the State of Punjab to redetermine the seniority of the petitioners on the basis of Financial Commissioners (Punjab) Subordinate Service Rules, 1943 (to be hereinafter referred to as the Rules) framed under S.241 of the Government of India Act, 1935. The High Court of Punjab and Haryana has accepted those writ petitions and set aside the orders of reversion of the petitioners, made solely on the ground of non-passing the departmental test. It has directed, that the seniority of the writ petitioners in their parent State, State of Punjab and their subsequent seniority in the United Punjab should be determined in accordance with the principles laid down in its judgment.3. Now let us examine the case of Madan Singh. Madan Singh joined the Financial Commissioners office in Lahore before the partition of India. As per Rule 5(e) of the Rules, anyone could be appointed as an assistant if he possesses sufficient experience of the rules and regulations and was capable of putting up intelligent notes and drafts. Rule 6 provided that the post of an assistant could be filled up by promotion from among the clerks in the Financial Commissioners office likely to make a good assistant. It is not denied that under the rules no clerk had to pass an examination or a test before being considered for promotion as an assistant. On June 29, 1950, the Revenue Secretary to the Financial Commissioner, Punjab, issued an Office Order No. 42 of 1950, prescribing a test for those who are working as senior clerks and those who are officiating as assistants in order to guide the making of promotions to the post of assistants. The office order stated that the officials who refused to take the test or failed to qualify in it "will not be deemed eligible for promotion". This office order was modified from time to time. But we are not concerned with those modifications in these appeals. Under an office order, dated June 30, 1955, it was directed that the seniority of assistants would be counted from the date of actual promotion to the rank and not from the date of passing the test. Madan Singh had been promoted as an assistant earlier. He was reverted to make room for those who had passed the qualifying test. Similar is the position of other petitioners.4. For the reasons we have already mentioned in State of Haryana etc. v. Shamsher Jang Bahadur etc. (Civil Appeals Nos. 1639 to 1641 of 1968, 31, 1279 and 2227 of 1969) since reported in [1972 - II L.L.J. 186], (supra), we agree with the High Court that the executive instructions issued by the State Government are void as they amount to an alteration of the rules prescribed under S.241 of the Government of India Act.5. It was urged on behalf of the State that the High Court should not have granted any relief in the writ petitions as the petitioners were guilty of laches inasmuch as they approached the Court after a long delay. This contention does not appear to have been urged before the High Court. The High Court having exercised its discretion in granting the reliefs asked for, we see no reason to interfere with its discretion.
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4. For the reasons we have already mentioned in State of Haryana etc. v. Shamsher Jang Bahadur etc. (Civil Appeals Nos. 1639 to 1641 of 1968, 31, 1279 and 2227 of 1969) since reported in [1972II L.L.J. 186], (supra), we agree with the High Court that the executive instructions issued by the State Government are void as they amount to an alteration of the rules prescribed under S.241 of the Government of India Act.It was urged on behalf of the State that the High Court should not have granted any relief in the writ petitions as the petitioners were guilty of laches inasmuch as they approached the Court after a long delay.This contention does not appear to have been urged before the High Court. The High Court having exercised its discretion in granting the reliefs asked for, we see no reason to interfere with its discretion.
|
Mohd-Ashfaq Vs. State Transport Appellate Tribunal U.P. and Others | application for renewal of a permit after the last date specified in subsection (2), "if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. " Sub-section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days. The word used in sub-section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain , m application for renewal of a permit even where it is beyond time, though not more than 15 days. It may condone the delay or it may not, depending on the circumstances of each case. The discretion is be exercised not on any arbitrary of fanciful grounds or whim or caprice of the Regional Transport Authority, but it is to be a judicial discretion. It is true that the criterion which is to guide the Regional Transport Authority in the exercise of its discretion is not articulated in sub-section (3), but it i s implicit in every conferment of discretion on a judicial or quasi-judicial authority that the discretion is to be exercised in a judicial manner on well settled legal principles. would not be right to attribute to the Legislature an intention to confer unguided and unfettered discretion on the Regional Transport Authority which is quasi-judicial authority. The discretion is obviously to be exercised where sufficient cause for no t making the application for renewal within time is made out by the applicant. This criterion can legitimately be imported from section 5 of the Limitation Act, 1963 which contains an allied provision for con donation of delay where an application is made beyond time. It could never have been the intention of the Legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely, on the ground that the delay is of not more than 15 days. Sub-section (3) enacts a provision for condonation of del ay in making an application for renewal and not provision extending the time limit specified in the proviso to sub-section (2) in all cases as a matter of course. If the intention of the Legislature were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in sub- section (3), but the Legislature could have very specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to sub-section (2).It is, therefore, dear that sub-section (3) of section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now the question which arises is: does section 5 of the Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2) of the Limitation Act, 1963 makes section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under section 5 ? If it does, then section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. This provision may seem harsh, but it has been deliberately and advisedly made because the question of renewal of a permit must obviously be decided before the expiration of the period of the permit and in view of the elaborate procedure set out in section 57 for dealing with an application for renewal, a certain minimum period before the expiration of the period of the permit must be provided within which this procedure can be completed so that the, renewal can, if at all, be granted well in time before the permit expires. If an application for renewal could be entertained even if made at any stage, it would dislocate the procedural machinery set out in section 57 and that is why the Legislature prescribed in sub-section (3) of section 58 that the delay in making an application for renewal may be condoned by the Regional Transport Authority only if it is of not more than 15 days. Here, the application made by the appellant for renewal of his permit was admittedly late by more than 15 days and hence the delay was not condonable and the Regional Transport Authority was right in rejecting the application for renewal as time barred. | 0[ds]This argument is, in our opinion, manifestly wrong. The scheme of Chapter IVA is clear and it does not exclude the applicability of the provisions contained in section 57 and the proviso to sub-section (2) of section 68. Chapter IVA contains a fasciculus of sections commencing from section 68A and ending with section 68-B. Section 68-A defines certain expressions used in Chapter IVA. Section 68-B gives overriding effect to the provisions contained in Chapter IVA by saying that these provisions shall have effect, notwithstanding anything inconsistent therewith contained in Chapter IV or in any other law for the time being in force. Section 68-C provides that where any State Transport Undertaking is of opinion that for the purpose of providing an efficient, adequate, economical and properly coordinated road transport service, it is necessary in the public interest that road transport service in relation to any route should be run and operated by the State Transport Undertaking, a scheme may be prepared by the S1ate Transport Undertaking giving particulars of the nature of the services proposed to be rendered, the route proposed to be covered and other prescribed particulars and such scheme shall be duly published. Certain categories of persons are empowered by section 68-D sub-section (1) to file objections against th e scheme published under sect-ion 68-C and the State Government may then, after considering such objections and hearing the parties, approve or modify the scheme under sub-section (2) of section 68-D. Section 68-D sub-section (3) provides that the scheme as approved or modified under sub-section (2) shall be Published in the Official Gazette and it shall thereupon become final and shall be called the approved scheme and the routes to which it relates shall be called the notified routes. Section 68-E provides for cancellation or modification of the scheme. Then follows section 68-F which is material for our purpose. Sub-section (1) of that section provides for issue of a permit to the State Transport Undertaking in respect of a notified route after publication of an approved scheme. But what is to happen during the period between the publication of a scheme under section 68-C and the publication of the approved scheme under sub-section (3) of section 68-D ? That is taken care of by sub-sections (1A) to (1-D) of section 68F. Sub-sect ion (1-A) provides that for this intervening period, the State Transport Undertaking may apply for a temporary permit in respect of a route specified in the scheme and where such application is made, the Regional Transport Authority shall, if it is satisfied that it is necessary to increase, in the public interest, the number of vehicles operating on such route, issue the temporary permit prayed for by the State Transport Undertaking. What shall be the duration of such temporary permit is laid down in sub-section (1-B). Sub-section (1-C) deals with the situation where no application for a temporary permit is made by the State Trans port Undertaking and it says that in such a case, the Regional Transport Authority may grant temporary permit to any person in respect of a route specified in the scheme. Sub-section (1-D) imposes a prohibition that "save as otherwise provided in sub-section (1-A) and sub-section (1-C), no permit shall be granted or renewed during the period intervening between the date of publication under section 68-C of any scheme and the date of publication of the approved or modified scheme, in favour of any person" in relation to a route covered by such scheme, but this is subject to a proviso that where the period of operation of a permit in relation to any route "specified in a scheme published under section 68-C expires after such publication, such permit may be renewed for a limited period". It will, therefore, be seen that where a scheme is published under section 68-C, no permit in respect of a route specified in the scheme can be granted or renewed during the intervening period between the publication of the scheme under section 68-C and the publication of the approved scheme, except a temporary permit to the State Transport Undertaking under sub-section (1-A) or failing that, a temporary permit to any other person under sub- section (1-C), with this qualification that an existing permit can be renewed for a limited period. The holder of an existing permit would obviously exnecessitas have to make an application, if he wants renewal of his permit and the application f or renewal would be considered by the Regional Transport Authority. The question is: can this application for renewal be made at any time and when it is made, what procedure would govern it. Section 57 lays down t he procedure to be followed in dealing with an application got grant of a permit and by reason of section 58 sub-section (2), that procedure is applicable also in relation to an application for renewal of a permit. There is also a time limit laid down in the proviso to sub-section (2) of section 58 which says, in so far as relevant, that an application for renewal of a permit shall be made not less than 120 days before the date of expiry of the permit. These provisions in section 57 and the proviso to sub-section (2) of section 58 on their plain language apply to every application for renewal of a permit and it is indeed difficult to see what difference there is between an application for renewal of a permit under the proviso to sub-section (1-D) of section 68-F and any other application for renewal of a permit. An application for renewal of a permit under the proviso to sub-section (1-D) of section 68-F is as much an application for renewal as any other. It had to be specially provided for in the proviso to sub-section (1-D) of section 68-F, because sub-section (1-D) imposes a prohibition on grant or renewal of permit during the intervening period between the publication of a scheme under section 68-C and the publication of the approved scheme and, ii the proviso were not enacted, renewal of an existing permit expiring after the publication of the scheme under section 68-C would have been barred. This, the Legislature did not want and hence the proviso was introduced permitting renewal of an existing permit though for a limited period, despite the general prohibition enact- ed in sub-section (1-D). This renewal was not intended to be sore6 special kind of renewal different from any other ordinary renewal of a permit. There is, therefore, no reason in principle why the provisions enacted in section 57 and the proviso to sub-section (2) of section 58 should not apply in case of an application for renewal of a permit under the proviso to sub-section (1-D) of section 68-F. If the procedure set out in section 57 does not apply in such a case, there is no other procedure prescribed by the Act which can possibly be invoked and the result would be that them would be no procedure for dealing with such an application. for renewal and in that event, how would the objections be invited against the application for renewal and within what ti me and who would be entitled to be heard and when ? And equally if the time Limit specified in the proviso to sub-section (2) of section 58 does not apply, there would be no time limit for making such an application for renewal and it would be possible to make it any time, even after the expiry of the period of the permit and the Regional Transport Authority would be bound to consider it. That surely could never have been the intention of the Legislature. Moreover, it is implicit in the enactment of section 68-B that Chapter IV-A is not a self-contained Chapter to which the other provisions of the Act are inapplicable. If Chapter IVA were a self-contained Code by itself, there would have been no need to give overriding effect to the provisions in that Chapter as against the other provisions of the Act. Section 68-F, sub-section (3) also proceeds on the assumption that, but for its enactment, an order made by the Regional Transport Authority under sub-section (1) or sub-section (2) of section 68-F would have been appealable under section 64 and it was to exclude the applicability of section 64 that sub-section (3 ) of section 68-F was enacted. These two circumstances dearly point to the conclusion that the other provisions of the Act, to the extent to which their language warrants, apply in relation to proceedings under Chapter IVA, save in so far as they may be, expressly or by reason of repugnance or inconsistency, overridden. We must, therefore, reject the first contention of the appellant which seeks to exclude the applicability of the proviso to sub-section (2) of section 58 to an application for renewal of a permit under the proviso to subsection (1-D) of section 68-F.That takes us to the next question as to the applicability of section 5 ofthe Limitation Act, 1963 to an application for renewal of aproviso to sub-section (2) requires that an application for renewal of a permit should be made not less than 120 days before the date of expiry of the permit. But, notwithstanding this provision, the Regional Transport Authority may, under sub-section (3), entertain an application for renewal of a permit after the last date specified in subsection (2), "if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. " Sub-section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days. The word used in sub-section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain , m application for renewal of a permit even where it is beyond time, though not more than 15 days. It may condone the delay or it may not, depending on the circumstances of each case. The discretion is be exercised not on any arbitrary of fanciful grounds or whim or caprice of the Regional Transport Authority, but it is to be a judicial discretion. It is true that the criterion which is to guide the Regional Transport Authority in the exercise of its discretion is not articulated in sub-section (3), but it i s implicit in every conferment of discretion on a judicial or quasi-judicial authority that the discretion is to be exercised in a judicial manner on well settled legal principles. would not be right to attribute to the Legislature an intention to confer unguided and unfettered discretion on the Regional Transport Authority which is quasi-judicial authority. The discretion is obviously to be exercised where sufficient cause for no t making the application for renewal within time is made out by the applicant. This criterion can legitimately be imported from section 5 ofthe Limitation Act, 1963 which contains an allied provision for con donation of delay where an application is made beyond time. It could never have been the intention of the Legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely, on the ground that the delay is of not more than 15 days. Sub-section (3) enacts a provision for condonation of del ay in making an application for renewal and not provision extending the time limit specified in the proviso to sub-section (2) in all cases as a matter of course. If the intention of the Legislature were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in sub- section (3), but the Legislature could have very specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to sub-section (2).It is, therefore, dear that sub-section (3) of section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now the question which arises is: does section 5 ofthe Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2) ofthe Limitation Act, 1963 makes section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under section 5 ? If it does, then section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. This provision may seem harsh, but it has been deliberately and advisedly made because the question of renewal of a permit must obviously be decided before the expiration of the period of the permit and in view of the elaborate procedure set out in section 57 for dealing with an application for renewal, a certain minimum period before the expiration of the period of the permit must be provided within which this procedure can be completed so that the, renewal can, if at all, be granted well in time before the permit expires. If an application for renewal could be entertained even if made at any stage, it would dislocate the procedural machinery set out in section 57 and that is why the Legislature prescribed in sub-section (3) of section 58 that the delay in making an application for renewal may be condoned by the Regional Transport Authority only if it is of not more than 15 days. Here, the application made by the appellant for renewal of his permit was admittedly late by more than 15 days and hence the delay was not condonable and the Regional Transport Authority was right in rejecting the application for renewal as time barred. | 0 | 4,739 | 2,817 | ### 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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application for renewal of a permit after the last date specified in subsection (2), "if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. " Sub-section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days. The word used in sub-section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain , m application for renewal of a permit even where it is beyond time, though not more than 15 days. It may condone the delay or it may not, depending on the circumstances of each case. The discretion is be exercised not on any arbitrary of fanciful grounds or whim or caprice of the Regional Transport Authority, but it is to be a judicial discretion. It is true that the criterion which is to guide the Regional Transport Authority in the exercise of its discretion is not articulated in sub-section (3), but it i s implicit in every conferment of discretion on a judicial or quasi-judicial authority that the discretion is to be exercised in a judicial manner on well settled legal principles. would not be right to attribute to the Legislature an intention to confer unguided and unfettered discretion on the Regional Transport Authority which is quasi-judicial authority. The discretion is obviously to be exercised where sufficient cause for no t making the application for renewal within time is made out by the applicant. This criterion can legitimately be imported from section 5 of the Limitation Act, 1963 which contains an allied provision for con donation of delay where an application is made beyond time. It could never have been the intention of the Legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely, on the ground that the delay is of not more than 15 days. Sub-section (3) enacts a provision for condonation of del ay in making an application for renewal and not provision extending the time limit specified in the proviso to sub-section (2) in all cases as a matter of course. If the intention of the Legislature were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in sub- section (3), but the Legislature could have very specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to sub-section (2).It is, therefore, dear that sub-section (3) of section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now the question which arises is: does section 5 of the Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2) of the Limitation Act, 1963 makes section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under section 5 ? If it does, then section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. This provision may seem harsh, but it has been deliberately and advisedly made because the question of renewal of a permit must obviously be decided before the expiration of the period of the permit and in view of the elaborate procedure set out in section 57 for dealing with an application for renewal, a certain minimum period before the expiration of the period of the permit must be provided within which this procedure can be completed so that the, renewal can, if at all, be granted well in time before the permit expires. If an application for renewal could be entertained even if made at any stage, it would dislocate the procedural machinery set out in section 57 and that is why the Legislature prescribed in sub-section (3) of section 58 that the delay in making an application for renewal may be condoned by the Regional Transport Authority only if it is of not more than 15 days. Here, the application made by the appellant for renewal of his permit was admittedly late by more than 15 days and hence the delay was not condonable and the Regional Transport Authority was right in rejecting the application for renewal as time barred.
### Response:
0
### Explanation:
(3), entertain an application for renewal of a permit after the last date specified in subsection (2), "if the application is made not more than 15 days after the said last date and is accompanied by the prescribed fee. " Sub-section (3) thus vests a discretion in the Regional Transport Authority to entertain an application for renewal of a permit even if it is beyond time, but in that case the delay should not be of more than fifteen days. The word used in sub-section (3) is "may" and not "shall" and the Regional Transport Authority is given a discretion to entertain , m application for renewal of a permit even where it is beyond time, though not more than 15 days. It may condone the delay or it may not, depending on the circumstances of each case. The discretion is be exercised not on any arbitrary of fanciful grounds or whim or caprice of the Regional Transport Authority, but it is to be a judicial discretion. It is true that the criterion which is to guide the Regional Transport Authority in the exercise of its discretion is not articulated in sub-section (3), but it i s implicit in every conferment of discretion on a judicial or quasi-judicial authority that the discretion is to be exercised in a judicial manner on well settled legal principles. would not be right to attribute to the Legislature an intention to confer unguided and unfettered discretion on the Regional Transport Authority which is quasi-judicial authority. The discretion is obviously to be exercised where sufficient cause for no t making the application for renewal within time is made out by the applicant. This criterion can legitimately be imported from section 5 ofthe Limitation Act, 1963 which contains an allied provision for con donation of delay where an application is made beyond time. It could never have been the intention of the Legislature that even where there is no sufficient cause for delay in making an application for renewal, the Regional Transport Authority should still be bound to entertain the application for renewal merely, on the ground that the delay is of not more than 15 days. Sub-section (3) enacts a provision for condonation of del ay in making an application for renewal and not provision extending the time limit specified in the proviso to sub-section (2) in all cases as a matter of course. If the intention of the Legislature were that in every case delay of not more than 15 days in making an application for renewal should be condoned as of course, there was no need for a separate provision in sub- section (3), but the Legislature could have very specified "one hundred and five days" instead of "one hundred and twenty days" in the proviso to sub-section (2).It is, therefore, dear that sub-section (3) of section 58 confers a discretion on the Regional Transport Authority to entertain an application for renewal when it is made beyond the time limit specified in the proviso to sub-section (2), but not more than 15 days late and the discretion is to be exercised in favour of entertaining the application for renewal when it is shown that there was sufficient cause for not making it in time. Now the question which arises is: does section 5 ofthe Limitation Act, 1963 apply so as to empower the Regional Transport Authority, for sufficient cause, to entertain an application for renewal even where it is delayed by more than 15 days? Section 29, sub-section (2) ofthe Limitation Act, 1963 makes section 5 applicable in the case of an application for renewal unless its applicability can be said to be expressly excluded by any provision of the Act. The only provision of the Act sought to be pressed into service for this purpose was sub-section (3). Does sub-section (3) expressly exclude further extension of time under section 5 ? If it does, then section 5 cannot be availed of by the appellant for condonation of the delay. Sub-section (3) in so many terms says that the Regional Transport Authority may condone the delay in making of an application for renewal and entertain it on merits provided the delay is of not more than 15 days. This clearly means that if the application for renewal is beyond time by more than 15 days, the Regional Transport Authority shall not be entitled to entertain it or in other words, it shall have no power to condone the delay. There is thus an express provision in sub-section (3) that delay in making an application for renewal shall be condonable only if it is of not more than 15 days and that expressly excludes the applicability of section 5 in cases where an application for renewal is delayed by more than 15 days. This provision may seem harsh, but it has been deliberately and advisedly made because the question of renewal of a permit must obviously be decided before the expiration of the period of the permit and in view of the elaborate procedure set out in section 57 for dealing with an application for renewal, a certain minimum period before the expiration of the period of the permit must be provided within which this procedure can be completed so that the, renewal can, if at all, be granted well in time before the permit expires. If an application for renewal could be entertained even if made at any stage, it would dislocate the procedural machinery set out in section 57 and that is why the Legislature prescribed in sub-section (3) of section 58 that the delay in making an application for renewal may be condoned by the Regional Transport Authority only if it is of not more than 15 days. Here, the application made by the appellant for renewal of his permit was admittedly late by more than 15 days and hence the delay was not condonable and the Regional Transport Authority was right in rejecting the application for renewal as time barred.
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Srihari Hanumandas Totala Vs. Hemant Vithal Kamat & Ors | same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions. (emphasis supplied) While holding that recourse to Order 7 Rule 11 by the appellant was not appropriate, this Court observed that the Trial Court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decided them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings. 19. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another 2020 SCC OnLine SC 482 , a three Judge bench of this Court, speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 , Church of Christ Charitable Trust (supra), and observed that 18. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 . 20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the previous suit is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. 21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which has forced the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007.Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d). | 0[ds]Justice R C Lahoti (as the learned Chief Justice then was), speaking for a two Judge bench in V. Rajeshwari v. T.C. Saravanabava (2004) 1 SCC 551 discussed the plea of res judicata and the particulars that would be required to prove the plea. The court held that it is necessary to refer to the copies of the pleadings, issues and the judgment of the former suit while adjudicating on the plea of res judicata:11. The rule of res judicata does not strike at the root of the jurisdiction of the court trying the subsequent suit. It is a rule of estoppel by judgment based on the public policy that there should be a finality to litigation and no one should be vexed twice for the same cause.13. Not only the plea has to be taken, it has to be substantiated by producing the copies of the pleadings, issues and judgment in the previous case. Maybe, in a given case only copy of judgment in previous suit is filed in proof of plea of res judicata and the judgment contains exhaustive or in requisite details the statement of pleadings and the issues which may be taken as enough proof. But as pointed out in Syed Mohd. Salie Labbai v. Mohd. Hanifa [(1976) 4 SCC 780] the basic method to decide the question of res judicata is first to determine the case of the parties as put forward in their respective pleadings of their previous suit and then to find out as to what had been decided by the judgment which operates as res judicata. It is risky to speculate about the pleadings merely by a summary of recitals of the allegations made in the pleadings mentioned in the judgment. The Constitution Bench in Gurbux Singh v. Bhooralal [AIR 1964 SC 1810 : (1964) 7 SCR 831 ] placing on a par the plea of res judicata and the plea of estoppel under Order 2 Rule 2 of the Code of Civil Procedure, held that proof of the plaint in the previous suit which is set to create the bar, ought to be brought on record. The plea is basically founded on the identity of the cause of action in the two suits and, therefore, it is necessary for the defence which raises the bar to establish the cause of action in the previous suit. Such pleas cannot be left to be determined by mere speculation or inferring by a process of deduction what were the facts stated in the previous pleadings. Their Lordships of the Privy Council in Kali Krishna Tagore v. Secy. of State for India in Council [(1887-88) 15 IA 186 : ILR 16 Cal 173] pointed out that the plea of res judicata cannot be determined without ascertaining what were the matters in issue in the previous suit and what was heard and decided. Needless to say, these can be found out only by looking into the pleadings, the issues and the judgment in the previous suit.18. At this stage, it would be necessary to refer to the decisions that particularly deal with the question whether res judicata can be the basis or ground for rejection of the plaint. In Kamala & others v. KT Eshwara Sa (2008) 12 SCC 661 , the Trial Judge had allowed an application for rejection of the plaint in a suit for partition and this was affirmed by the High Court. Justice S B Sinha speaking for the two judge bench examined the ambit of Order 7 Rule 11(d) of the CPC and observed:21. Order 7 Rule 11(d) of the Code has limited application. It must be shown that the suit is barred under any law. Such a conclusion must be drawn from the averments made in the plaint. Different clauses in Order 7 Rule 11, in our opinion, should not be mixed up. Whereas in a given case, an application for rejection of the plaint may be filed on more than one ground specified in various sub-clauses thereof, a clear finding to that effect must be arrived at. What would be relevant for invoking clause (d) of Order 7 Rule 11 of the Code are the averments made in the plaint. For that purpose, there cannot be any addition or subtraction. Absence of jurisdiction on the part of a court can be invoked at different stages and under different provisions of the Code. Order 7 Rule 11 of the Code is one, Order 14 Rule 2 is another.22. For the purpose of invoking Order 7 Rule 11(d) of the Code, no amount of evidence can be looked into. The issues on merit of the matter which may arise between the parties would not be within the realm of the court at that stage. All issues shall not be the subject-matter of an order under the said provision.The Court further held:23. The principles of res judicata, when attracted, would bar another suit in view of Section 12 of the Code. The question involving a mixed question of law and fact which may require not only examination of the plaint but also other evidence and the order passed in the earlier suit may be taken up either as a preliminary issue or at the final hearing, but, the said question cannot be determined at that stage.24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.19. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another 2020 SCC OnLine SC 482 , a three Judge bench of this Court, speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 , Church of Christ Charitable Trust (supra), and observed that18. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 .20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the previous suit is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit;(iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which has forced the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007.Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d). | 0 | 7,038 | 2,089 | ### Instruction:
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same time, the trial court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decide the same in the first instance. In this manner the appellant, or for that matter the parties, can be absolved of unnecessary agony of prolonged proceedings, in case the appellant is ultimately found to be correct in his submissions. (emphasis supplied) While holding that recourse to Order 7 Rule 11 by the appellant was not appropriate, this Court observed that the Trial Court may, after framing the issues, take up the issues which pertain to the maintainability of the suit and decided them in the first instance. The Court held that this course of action would help the appellant avoid lengthy proceedings. 19. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another 2020 SCC OnLine SC 482 , a three Judge bench of this Court, speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 , Church of Christ Charitable Trust (supra), and observed that 18. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 . 20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows: (i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to; (ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application; (iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the previous suit is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit; (iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and (iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and (iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused. 21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which has forced the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007.Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d).
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the said question cannot be determined at that stage.24. It is one thing to say that the averments made in the plaint on their face discloses no cause of action, but it is another thing to say that although the same discloses a cause of action, the same is barred by a law.25. The decisions rendered by this Court as also by various High Courts are not uniform in this behalf. But, then the broad principle which can be culled out therefrom is that the court at that stage would not consider any evidence or enter into a disputed question of fact or law. In the event, the jurisdiction of the court is found to be barred by any law, meaning thereby, the subject-matter thereof, the application for rejection of plaint should be entertained.19. In a more recent decision of this Court in Shakti Bhog Food Industries Ltd. v. Central Bank of India and Another 2020 SCC OnLine SC 482 , a three Judge bench of this Court, speaking though Justice AM Khanwilkar, was dealing with the rejection of a plaint under Order 7 Rule 11 by the Trial Court, on the ground that it was barred by limitation. The Court referred to the earlier decisions including in Saleem Bhai v. State of Maharashtra (2003) 1 SCC 557 , Church of Christ Charitable Trust (supra), and observed that18. It is clear that in order to consider Order 7 Rule 11, the court has to look into the averments in the plaint and the same can be exercised by the trial court at any stage of the suit. It is also clear that the averments in the written statement are immaterial and it is the duty of the Court to scrutinize the averments/pleas in the plaint. In other words, what needs to be looked into in deciding such an application are the averments in the plaint. At that stage, the pleas taken by the defendant in the written statement are wholly irrelevant and the matter is to be decided only on the plaint averment. These principles have been reiterated in Raptakos Brett & Co. Ltd. v. Ganesh Property, (1998) 7 SCC 184 and Mayar (H.K.) Ltd. v. Vessel M.V. Fortune Express, (2006) 3 SCC 100 .20. On a perusal of the above authorities, the guiding principles for deciding an application under Order 7 Rule 11(d) can be summarized as follows:(i) To reject a plaint on the ground that the suit is barred by any law, only the averments in the plaint will have to be referred to;(ii) The defense made by the defendant in the suit must not be considered while deciding the merits of the application;(iii) To determine whether a suit is barred by res judicata, it is necessary that (i) the previous suit is decided, (ii) the issues in the subsequent suit were directly and substantially in issue in the former suit;(iii) the former suit was between the same parties or parties through whom they claim, litigating under the same title; and(iv) that these issues were adjudicated and finally decided by a court competent to try the subsequent suit; and(iv) Since an adjudication of the plea of res judicata requires consideration of the pleadings, issues and decision in the previous suit, such a plea will be beyond the scope of Order 7 Rule 11 (d), where only the statements in the plaint will have to be perused.21. In the present case, a meaningful reading of the plaint makes it abundantly clear that when the first respondent instituted the subsequent suit, he had been impleaded as the second defendant to the earlier suit (OS No. 103/2007) that was instituted on 13 March 2007. The first respondent instituted the subsequent suit, OS 138/2008 though he had knowledge of the earlier suit. The plaint in the subsequent suit which was instituted by the first respondent indicates that the he was aware of the mortgage executed in favour of KSFC, that KSFC had executed its charge by selling the property for the recovery of its dues and that the property had been sold on 8 August 2006 in favour of the predecessor of the appellant. As a matter of fact, the plaint contains an averment that there was every possibility that the first respondent may suffer a decree for possession in OS 103/2007 which has forced the first respondent to institute the suit for challenging the legality of the sale deed. Given the fact that an argument was raised in the previous suit regarding no challenge having been made to the auction and the subsequent sale deed executed by the KFSC, it is possible that the first respondent then decided to exercise his rights and filed the subsequent suit. Be that as it may, on a reading of the plaint, it is evident that the first respondent has not made an attempt to conceal the fact that a suit regarding the property was pending before the civil court at the time. It is also relevant to note that at the time of institution of the suit (OS No. 138/2008) by the first respondent, no decree had been passed by the civil court in OS No. 103/2007.Thus, the issues raised in OS No. 103/2007, at the time, had not been adjudicated upon. Therefore, the plaint, on the face of it, does not disclose any fact that may lead us to the conclusion that it deserves to be rejected on the ground that it is barred by principles of res judicata. The High Court and the Trial Court were correct in their approach in holding, that to decide on the arguments raised by the appellant, the court would have to go beyond the averments in the plaint, and peruse the pleadings, and judgment and decree in OS No. 103/2007. An application under Order 7 Rule 11 must be decided within the four corners of the plaint. The Trial court and High Court were correct in rejecting the application under order 7 Rule 11(d).
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Citation Infowares Limited Vs. Equinox Corporation | but that does not effect the jurisdiction under Section 11 which falls for Part I which has been specifically held applicable in Bhatia International (cited supra). 18. The learned Judge, deciding the Indtel Technical Services case (cited supra) also has taken into consideration this aspect and has expressed in Paragraph 36 as follows: The decisions cited by Mr. Tripathi and the views of the jurists referred to in NTPCs case support such a proposition. What, however, distinguishes the various decisions and views of the authorities in this case is he fact that in Bhatia International this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996 indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of another country, the parties would be entitled to invoke the provisions of Part I of the aforesaid Act and consequently the application made under Section 11 thereof would be maintainable. 19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion. 20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected. 21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1. I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable. 22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part I. The law laid down, therefore, is clearly binding. 23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed. 24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows. 25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter. 26. In so far as the Bay Hotel and Resort case (cited supra) is concerned the reliance is placed on paragraph 35 of the said decision to the following effect: Two points in the speech of Lord Wilberforce are notable here. First, he said that in the normal case where the contract itself is governed by English law, any arbitration would be held under English procedure. Secondly, he said that the mere fact that the arbitrator was to set either partly or exclusively in another part of the United Kingdom, or, for that matter, abroad, would not lead to a different result; the place might be chosen for many reasons of convenience or be purely accidental; a choice so made should not affect the parties rights. The passage in his speech is at page 616 of the report. These observations apply to the normal case which is not a case here. 27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy. | 1[ds]19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part IThe law laid down, therefore, is clearly binding23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy. | 1 | 4,219 | 745 | ### Instruction:
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but that does not effect the jurisdiction under Section 11 which falls for Part I which has been specifically held applicable in Bhatia International (cited supra). 18. The learned Judge, deciding the Indtel Technical Services case (cited supra) also has taken into consideration this aspect and has expressed in Paragraph 36 as follows: The decisions cited by Mr. Tripathi and the views of the jurists referred to in NTPCs case support such a proposition. What, however, distinguishes the various decisions and views of the authorities in this case is he fact that in Bhatia International this Court laid down the proposition that notwithstanding the provisions of Section 2(2) of the Arbitration and Conciliation Act, 1996 indicating that Part I of the said Act would apply where the place of arbitration is in India, even in respect of international commercial agreements, which are to be governed by the laws of another country, the parties would be entitled to invoke the provisions of Part I of the aforesaid Act and consequently the application made under Section 11 thereof would be maintainable. 19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion. 20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected. 21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1. I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable. 22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part I. The law laid down, therefore, is clearly binding. 23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed. 24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows. 25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter. 26. In so far as the Bay Hotel and Resort case (cited supra) is concerned the reliance is placed on paragraph 35 of the said decision to the following effect: Two points in the speech of Lord Wilberforce are notable here. First, he said that in the normal case where the contract itself is governed by English law, any arbitration would be held under English procedure. Secondly, he said that the mere fact that the arbitrator was to set either partly or exclusively in another part of the United Kingdom, or, for that matter, abroad, would not lead to a different result; the place might be chosen for many reasons of convenience or be purely accidental; a choice so made should not affect the parties rights. The passage in his speech is at page 616 of the report. These observations apply to the normal case which is not a case here. 27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy.
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19. The situation therefore is identical in the present matter. Shri K.K. Venugopal, however, contended that if the parties intended specifically in this case that the law governing the contract was Californian law, as expressed in Bhatia Internation as well as in Indtel Technical Services case (cited supra), an implied exclusion of Part I should be presumed. I am afraid it is not possible to read such an implied exclusion20. Seen the striking similarity between Clause 10.1 and Clauses 13.1 and 13.2 which have been quoted above and further the view expressed by learned Judge in Indtel Technical Services case (cited supra) regarding the exclusion, it is only possible to read even distantly such an implied exclusion of Part I. It cannot be forgotten that one of the contracting parties is the Indian party. The obligations under the contract were to be completed in India. Further considering the nature of the contract, it is difficult to read any such implied exclusion of Part I in the language of Clause 10.1. That argument of learned senior counsel for the respondent therefore must be rejected21. Learned senior counsel for the respondent invited attention of this Court to paragraphs 32 and 34 of Bhatia International (cited supra) and again reiterated that the implied exclusion must be read in the language of Clause 10.1I have already however, held that considering the various factors, such exclusion cannot be read and, therefore, Bhatia International (cited supra) will have to be held applicable22. Identical view has been taken even in Venture Global Engineerings case (cited supra) where the Court took the view that even the foreign award could be challenged under Section 34 of the Act. This is a judgment by Two Judges Bench. The observations made in paragraphs 31, 35 and 37 are extremely apposite and binding. The comments against this judgment that it does not consider the question of implied exclusion would be of no consequence in view of the findings which have earlier been referred to. In the present matter it cannot be said that there was any implied exclusion of the provisions of Part IThe law laid down, therefore, is clearly binding23. Similarly the language of Clause 10.1, it is suggested was expressly agreed between the parties that the procedural law would be that of California. The suggestion given by the learned senior counsel for the respondent that since the provision about the arbitration is included in the same sentence the intention must be presumed that the parties intended only the Californian law even to govern the procedure. As I have said, that by itself it cannot be the way to read the said Cause as the decision in Bhatia International (cited supra) was available on the date when the agreement was signed24. This means that the contentions raised based on the three foreign cases by Shri K.K. Venugopal James Miller & Partners case (cited supra), Bay Hotel and Resort case (cited supra) and ABB Lummus Globals case (cited supra) need not be considered in view of the binding nature of the three aforementioned decisions in Bhatia International (cited supra), Venture Global Engineerings case (cited supra), and Indtel Technical Services case (cited supra). However, since those cases are actively relied upon the same are considered as follows25. In the first mentioned case, the question was as to the applicable law of contract and not the applicable law of arbitration where the parties had specifically agreed on the law of contract. The factual situation was, therefore, different. The relied on observations at page 616 of the decision are more in the nature of obiter27. As regards the third decision in ABB Lummus Globals case (cited supra) the relied upon passage again does not clinch the issue. What is stated there is that where the parties chose the curial law of arbitration they would be taken to chose the place and sitting of arbitration. In my opinion the observations are not apposite to the present controversy.
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RELIANCE LIFE INSURANCE CO. LTD. Vs. REKHABEN NARESHBHAI RATHOD | agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) "there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance". Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposal was not disclosed, the insurer may cancel the contract and forfeit the premium. MacGillivray on Insurance Law formulates the principle thus: "… In more recent cases it has been held that all-important element in such a declaration is the phrase which makes the declaration the "basis of contract". These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality" "29. We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd AIR 1958 Mys 53 where it was held:" Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate." | 1[ds]11. While considering the rival submissions, it is necessary to preface our analysis with reference to two basic facts. The first pertains to the nature of the disclosure made by the insured in the proposal form. The second relates to the ground for repudiation of the claim. The proposal form required a specific disclosure of the lifeinsurance policies held by the proposer and all proposals submitted to life insurance companies, including the appellant. The proposer was called upon to furnish a full disclosure of covers for life insurance, critical illness or accident benefit under which the proposer was currently insured or for which the proposer had applied. The answer to this was given in the negative. Furthermore, item 17 of the proposal form required a detailed disclosure of the other insurance policies held by the proposer including the sum assured. A disclosure was also required of the status of pending proposals. These were answered with ae, following the statement that the proposer did not hold any other insurance cover. The fact that two months prior to the policy which was obtained from the appellant on 16 September 2009, the insured had obtained a policy from Max New York Life Insurance Co Ltd in the amount of Rs 11 lakhs has now been admitted. There was evidently a nondisclosure of the earlier cover for life insurance held by the insured. The second aspect of the case which merits to be noticed is that the repudiation of the claim on 30 August 2011 was on the ground that there was a non-disclosure of a material fact on the part of the insured in not disclosing that he held a prior insurance cover. The insurer stated that if this was to be disclosed in the proposal form, it would have called for and evaluated financial income documents together with the terms for the acceptance of the cover. Though the insurer has subsequently, during the pendency of the proceedings made an effort to sustain its repudiation on the ground that the insured had a pre-existing illness which was not disclosed, it is necessary to record that this was not pressed in aid during the hearing before this Court.12. The repudiation in the present case was within a period of two years from the commencement of the insurance cover. This assumes significance because of the provisions of Section 45 of the Insurance Act 1932, as they stood at the materialNo policy of life insurance effected before the commencement of this Act shall after the expiry of two years from the date of commencement of this Act and no policy of life insurance effected after the coming into force of this Act shall, after the expiry of two years from the date on which it was effected be called in question by an insurer on the ground that statement made in the proposal or in any report of a medical officer, or referee, or friend of the insured, or in any other document leading to the issue of the policy, was inaccurate or false, unless the insurer shows that such statement was on a material matter or suppressed facts which it was material to disclose and that it was fraudulently made by the policy-holder and that the policy-holder knew at the time of making it that the statement was false or that it suppressed facts which it was material to disclose.Provided that nothing in this section shall prevent the insurer from calling for proof of age at any time if he is entitled to do so, and no policy shall be deemed to be called in question merely because the terms of the policy are adjusted on subsequent proof that the age of the life insured was incorrectly stated in the proposal.Section 45 stipulates restrictions upon the insurer calling into question a policy of life insurance after the expiry of two years from the date on which it was effected . After two years have elapsed the insurer cannot call it into question on the ground that: (i) a statement made in the proposal; or (ii) a statement made in any report of a medical officer, referee or friend of the insured; or (iii) a statement made in any other document leading to the issuance of the policy was inaccurate or false, unless certain conditions are fulfilled. Those conditions are that : (a) such a statement was on a material matter; or (b) the statement suppressed facts which were material to disclose and that (i) they were fraudulently made by the policy holder; and (ii) the policy holder knew at the time of making it that the statements were false or suppressed facts whichwere material to disclose. The cumulative effect of Section 45 is to restrict the right of the insurer to repudiate a policy of life insurance after a period of two years of the date on which the policy was effected. Beyond two years, the burden lies on the insurer to establish the inaccuracy or falsity of a statement on a material matter or the suppression of material facts. Moreover, in addition to this requirement, the insurer has to establish that this non-disclosure or, as the case may be, the submission of inaccurate or false information was fraudulently made and that the policy holder while making it knew of the falsity of the statement or of the suppression of facts which were material to disclose. 14. Section 45 curtails the common law rights of the insurer after two years have elapsed since the cover for life insurance was effected. In the present case, the Court is called upon to determine the nature of the authority of the insurer where a policy of life insurance or a claim under it is sought to be repudiated within two years. The insurer submits that within a period of two years, its right to repudiate theclaim is untrammelled and is not subject to the conditions which apply beyond two years. On the other hand, the submission of the respondent is that even within a period of two years, a non-disclosure or suppression must be of a material fact to justify a repudiation. In other words, before a non-disclosure can be utilized as a ground to repudiate, it must pertain to a realm where it can be found that the nondisclosure was of a circumstance or fact which would have affected the decision of the insurer regarding whether or not to grant a cover.Regulation 2(d) specifically defines the expressionas a form which is filled by a proposer for insurance to furnish all material information required by the insurer in respect of a risk. The purpose of the disclosure is to enable the insurer to decide whether to accept or decline to undertake a risk. The disclosures are also intended to enable the insurer, in the event that the risk is accepted, to determine the rates, terms and conditions on which a cover is to be granted. The explanation defines the expressionto mean and includeimportant essential and relevantfor underwriting the risk to be covered by the insurer. Regulation 4(3) stipulates that while filling up the proposal, the proposer is to be guided by the provisions of Section 45. Where a proposal form is not used, the insurer under Regulation 4(4) is to record the information, confirming it within a stipulated period with the proposer and ought to incorporate the information in the cover note or policy. In respect of information which is not so recorded, the onus of proof lies on the insurer who claims that there was a suppression of material information or that the insured provided misleading or false information on any matter that was material to the grant of the cover.of a fact also depends on the surrounding circumstances and the nature of information sought by the insurer. It covers a failure to disclose vital information which the insurer requires in order to determine firstly, whether or not to assume the risk of insurance, and secondly, if it does accept the risk, upon what terms it should do so. The insurer is better equipped to determine the limits of risk-taking as it deals with the exercise of assessments on a day-to-day basis. In a contract of insurance, any fact which would influence the mind of a prudent insurer in deciding whether to accept or not accept the risk is a material fact. If the proposer has knowledge of such fact, she or he is obliged to disclose it particularly while answering questions in the proposal form. An inaccurate answer will entitle the insurer to repudiate because there is a presumption that information sought in the proposal form is material for the purpose of entering into a contract of insurance.26. Contracts of insurance are governed by the principle of utmost good faith. The duty of mutual fair dealing requires all parties to a contract to be fair and open with each other to create and maintain trust between them. In a contract of insurance, the insured can be expected to have information of which she/he has knowledge. This justifies a duty of good faith, leading to a positive duty of disclosure.is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra)is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract ofEach representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposalwas not disclosed, the insurer may cancel the contract and forfeit the premium.We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. | 1 | 8,646 | 2,576 | ### Instruction:
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agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra) "there is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract of insurance". Each representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposal was not disclosed, the insurer may cancel the contract and forfeit the premium. MacGillivray on Insurance Law formulates the principle thus: "… In more recent cases it has been held that all-important element in such a declaration is the phrase which makes the declaration the "basis of contract". These words alone show that the proposer is warranting the truth of his statements, so that in the event of a breach this warranty, the insurer can repudiate the liability on the policy irrespective of issues of materiality" "29. We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted. A similar argument was correctly rejected in a decision of a Division Bench of the Mysore High Court in VK Srinivasa Setty v Messers Premier Life and General Insurance Co Ltd AIR 1958 Mys 53 where it was held:" Now it is clear that a person who affixes his signature to a proposal which contains a statement which is not true, cannot ordinarily escape from the consequence arising therefrom by pleading that he chose to sign the proposal containing such statement without either reading or understanding it. That is because, in filling up the proposal form, the agent normally, ceases to act as agent of the insurer but becomes the agent of the insured and no agent can be assumed to have authority from the insurer to write the answers in the proposal form.If an agent nevertheless does that, he becomes merely the amanuensis of the insured, and his knowledge of the untruth or inaccuracy of any statement contained in the form of proposal does not become the knowledge of the insurer. Further, apart from any question of imputed knowledge, the insured by signing that proposal adopts those answers and makes them his own and that would clearly be so, whether the insured signed the proposal without reading or understanding it, it being irrelevant to consider how the inaccuracy arose if he has contracted, as the plaintiff has done in this case that his written answers shall be accurate."
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fact. If the proposer has knowledge of such fact, she or he is obliged to disclose it particularly while answering questions in the proposal form. An inaccurate answer will entitle the insurer to repudiate because there is a presumption that information sought in the proposal form is material for the purpose of entering into a contract of insurance.26. Contracts of insurance are governed by the principle of utmost good faith. The duty of mutual fair dealing requires all parties to a contract to be fair and open with each other to create and maintain trust between them. In a contract of insurance, the insured can be expected to have information of which she/he has knowledge. This justifies a duty of good faith, leading to a positive duty of disclosure.is standard practice for the insurer to set out in the application a series of specific questions regarding the applicants health history and other matters relevant to insurability. The object of the proposal form is to gather information about a potential client, allowing the insurer to get all information which is material to the insurer to know in order to assess the risk and fix the premium for each potential client. Proposal forms are a significant part of the disclosure procedure and warrant accuracy of statements. Utmost care must be exercised in filling the proposal form. In a proposal form the applicant declares that she/he warrants truth. The contractual duty so imposed is such that any suppression, untruth or inaccuracy in the statement in the proposal form will be considered as a breach of the duty of good faith and will render the policy voidable by the insurer. The system of adequate disclosure helps buyers and sellers of insurance policies to meet at a common point and narrow down the gap of information asymmetries. This allows the parties to serve their interests better and understand the true extent of the contractual agreement. The finding of a material misrepresentation or concealment in insurance has a significant effect upon both the insured and the insurer in the event of a dispute. The fact it would influence the decision of a prudent insurer in deciding as to whether or not to accept a risk is a material fact. As this Court held in Satwant Kaur (supra)is a clear presumption that any information sought for in the proposal form is material for the purpose of entering into a contract ofEach representation or statement may be material to the risk. The insurance company may still offer insurance protection on altered terms.27. In the present case, the insurer had sought information with respect to previous insurance policies obtained by the assured. The duty of full disclosure required that no information of substance or of interest to the insurer be omitted or concealed. Whether or not the insurer would have issued a life insurance cover despite the earlier cover of insurance is a decision which was required to be taken by the insurer after duly considering all relevant facts and circumstances. The disclosure of the earlier cover was material to an assessment of the risk which was being undertaken by the insurer. Prior to undertaking the risk, this information could potentially allow the insurer to question as to why the insured had in such a short span of time obtained two different life insurance policies. Such a fact is sufficient to put the insurer to enquiry. 28. Learned counsel appearing on behalf of the insurer submitted that where a warranty has been furnished by the proposer in terms of a declaration in the proposal form, the requirement of the information being material should not be insisted upon and the insurer would be at liberty to avoid its liability irrespective of whether the information which is sought is material or otherwise. For the purposes of the present case, it is sufficient for this Court to hold in the present facts that the information which was sought by the insurer was indeed material to its decision as to whether or not to undertake a risk. The proposer was aware of the fact, while making a declaration, that if any statements were untrue or inaccurate or if any matter material to the proposalwas not disclosed, the insurer may cancel the contract and forfeit the premium.We are not impressed with the submission that the proposer was unaware of the contents of the form that he was required to fill up or that in assigning such a response to a third party, he was absolved of the consequence of appending his signatures to the proposal. The proposer duly appended his signature to the proposal form and the grant of the insurance cover was on the basis of the statements contained in the proposal form. Barely two months before the contract of insurance was entered into with the appellant, the insured had obtained another insurance cover for his life in the sum of Rs 11 lakhs. We are of the view that the failure of the insured to disclose the policy of insurance obtained earlier in the proposal form entitled the insurer to repudiate the claim under the policy. 30. We may note at this stage, that the view which was taken by the NCDRC in the present case was contrary to its earlier decision in Vidya Devi (supra). In that case, the NCDRC upheld the repudiation of an insurance claim under a life insurance cover by the LIC on the ground of a non-disclosure of previous insurance policies. In taking this view, the NCDRC relied on its earlier decision in Chandarana (supra). Subsequently in Sahara India (supra), the NCDRC took a contrary view. Having noticed its earlier decisions, the NCDRC did not even attempt to distinguish them. Indeed, the earlier decisions were binding on the NCDRC. This line of approach on the part of the NCDRC must be disapproved. 31. Finally, the argument of the respondent that the signatures of the assured on the form were taken without explaining the details cannot be accepted.
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M/S. GRANULES INDIA LTD Vs. UNION OF INDIA | no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench order of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief. 6. Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No.14288 of 2004 (CC No.5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary. 7. Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified. 8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption. In Shri Krishna Pharmaceuticals Limited (supra), the High Court observed as follows: ?7. …Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.? 9. It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved. 10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows: ¬ ?10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.? | 1[ds]8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of theShri Krishna Pharmaceuticals Limited (supra), the High Court observed as…Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows:Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.? | 1 | 1,550 | 788 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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no mandamus for exemption could be issued. The consignments were admittedly imported after 25.11.1993 and before the clarificatory notification dated 18.03.1994. Thus, there was no arbitrariness on part of the respondent. The appellant preferred a review application inter alia relying upon a Division Bench order of the Andhra Pradesh High Court in Shri Krishna Pharmaceuticals Limited vs. Union of India, (2004) 173 ELT 14. Rejecting the plea, the High Court opined that since the appellant did not produce the clarificatory notification along with the writ petition and neither were the respondents aware of the clarificatory notification the appellant was not entitled to any relief. 6. Shri B. Adinarayana Rao, learned senior counsel appearing on behalf of the appellant, submitted that denial of exemption to the consignment actually imported after 25.11.1993 under the advance licence obtained prior to 19.05.1992 notwithstanding the clarificatory notification dated 18.03.1994 holding the appellant liable for customs duty is completely unsustainable. Special Leave Petition (Civil) No.14288 of 2004 (CC No.5418/2004) preferred against the order in Shri Krishna Pharmaceuticals Limited (supra) was dismissed. The mere failure to enclose a copy of the notification could not be a ground for denial of relief. Denial of exemption in the facts and circumstances of the case in view of the statutory notifications were per se arbitrary. 7. Learned counsel appearing for the State supported the order of the High Court and urged that the consignments having been imported after withdrawal of the exemption and before issuance of the clarificatory notification was justified. 8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of the exemption. In Shri Krishna Pharmaceuticals Limited (supra), the High Court observed as follows: ?7. …Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.? 9. It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved. 10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows: ¬ ?10. Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.?
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8. We have considered the submissions on behalf of the parties and are of the considered opinion that the order of the High Court is completely unsustainable. The entire consignment was imported under one advance licence issued to the petitioner prior to 19.05.1992. The fortuitous circumstance that part of the consignment was actually imported prior to 25.11.1993 and the rest subsequent thereto is hardly relevant in view of the clarificatory notification dated 18.03.1994 that the exemption would continue to apply subject to fulfilment of the specified terms and conditions. It is not the case of the respondents that the consignments imported subsequently did not meet the terms and conditions of theShri Krishna Pharmaceuticals Limited (supra), the High Court observed as…Obviously, the petitioner had the facility of exemption from payment of the customs duty under the scheme known as Advance License Scheme, but the same was banned through notification dated 25.11.1993 and later through another clarificatory notification the same was extended by Notification dated 18.3.1994. Thus, since the Government itself has clarified by its second notification providing exemption, we are inclined to hold that the petitioner shall be entitled to be exemption for all the three consignments as long as the three consignments are imported under the Advance License scheme. Moreover, it is not the case of the respondents that these three consignments are not covered under the Advance License scheme.It is unfortunate that the High Court failed to follow its own orders in a similar matter. The High Court further gravely erred in holding that the authorities of the State were also unaware of the clarificatory notification and neither did the appellant bring it on record. The State is the largest litigant as often noted. It stands in a category apart having a solemn and constitutional duty to assist the court in dispensation of justice. The State cannot behave like a private litigant and rely on abstract theories of the burden of proof. The State acts through its officer who are given powers in trust. If the trust so reposed is betrayed, whether by casualness or negligence, will the State still be liable for such misdemeanor by its officers betraying the trust so reposed in them or will the officers be individually answerable. In our considered opinion it is absolutely no defence of the State authorities to contend that they were not aware of their own notification dated 18.09.1994. The onus heavily rests on them and a casual statement generating litigation by State apathy cannot be approved.10. We can do no better than quote the following extract from National Insurance Co. Ltd. vs. Jugal Kishore, (1988) 1 SCC 626 , observing as follows:Before parting with the case, we consider it necessary to refer to the attitude often adopted by the Insurance Companies, as was adopted even in this case, of not filing a copy of the policy before the Tribunal and even before the High Court in appeal. In this connection what is of significance is that the claimants for compensation under the Act are invariably not possessed of either the policy or a copy thereof. This Court has consistently emphasised that it is the duty of the party which is in possession of a document which would be helpful in doing justice in the cause to produce the said document and such party should not be permitted to take shelter behind the abstract doctrine of burden of proof. This duty is greater in the case of instrumentalities of the State such as the appellant who are under an obligation to act fairly. In many cases even the owner of the vehicle for reasons known to him does not choose to produce the policy or a copy thereof. We accordingly wish to emphasise that in all such cases where the Insurance Company concerned wishes to take a defence in a claim petition that its liability is not in excess of the statutory liability it should file a copy of the insurance policy along with its defence. Even in the instant case had it been done so at the appropriate stage necessity of approaching this Court in civil appeal would in all probability have been avoided. Filing a copy of the policy, therefore, not only cuts short avoidable litigation but also helps the court in doing justice between the parties. The obligation on the part of the State or its instrumentalities to act fairly can never be over¬emphasised.?
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Industrial Trust Limited Jaipur Vs. The Commissioner of Income Tax (Central & Rajasthan) New Delhi | Department.8. There is no dispute that if the assessment proceedings under Section 34 initiated by the I.T.O., Ajmer, are valid proceedings, the I.T.O., Central Circle, would not have had jurisdiction to issue fresh notices under Section 34. The case for the department is that the I.T.O., Ajmer, had no jurisdiction over the assessee in respect of the assessment years with which we are concerned and consequently, the notices issued by him under Section 34 in respect of those years were invalid notices. We have to see whether that submission is correct. If we hold that the notices issued by the I.T.O., Ajmer was invalid notices then we have to uphold the judgment of the High Court. At no stage before the authorities under the Act the assessee had put forward the case that any I.T.O. other than I.T.O., Ajmer or I.T.O., Central Circle had jurisdiction over it in respect of the assessment years in question.9. Section 5, sub-section (6) of the Act provides:-"The Central Board of Revenue may, by notification in the official Gazette empower Commissioner of Income-tax, Appellate or Inspecting Assistant Commissioner of Income-tax and Income-tax Officers to perform such functions in respect of such classes of persons or such classes of income or such area as may be specified in the notification, and thereupon the functions so specified shall cease to be performed in respect of the specified classes of persons or classes of income or area by the other authorities appointed under sub-sections (2) and (3)".10. Ordinarily an assessee has to be assessed by the I.T.O., within whose territorial jurisdiction he resides. But, it is open to the Central Board of Revenue to assign any particular class of assessee or any particular type of assessments to an I.T.O., of its choice. It was urged on behalf of the Department that the I.T.O., Ajmer had no jurisdiction to assess the assessee in respect of the assessment years with which we are concerned in view of the notification issued by the Central Board of Revenue on July 1, 1952. The notification, to the extent relevant for our purpose may be set out. It reads thus :"Notification No.S.R.O. 1214 dated the 1st July, 1952.In exercise of the powers conferred by sub-section (6) of Section 5 of the Indian Income-tax Act, 1922 (XI of 1922), and in supersession of its Notification No.13/I.T. dated the 12th February, 1919, the Central Board of Revenue appoints the Officers specified in the 3rd, 4th, 5th and 6th columns of the Schedule annexed hereto, to perform all the functions of an Income-tax Officer, Inspecting, Assistant Commissioner of Income-tax, Appellate Assistant Commissioner of Income-tax and the Commissioner of Income-tax respectively in respect of the persons specified in the corresponding entry in the 2nd column thereof.Provided that nothing herein contained shall apply to cases or classes of cases assigned to a Commissioner of Income-tax appointed under sub-section (2) of Section 5 of the Indian Income-tax Act,1922, without reference to area.S.NoPersonsI.T.O.Ins. Asst. Commr., I/TaxA.A.C. of I/TaxCommr.of Income Taxx*xxxxxXxxxxxxX*77Persons (excluding those who fall under S. Nos. 69 and 76) not resident in the taxable territories and not assessed through statutory agents under S. 43 with any income for direct assessment etc., house property, interest etc. residing in the following Indian States :(1) xxxxxxX(2) xxxxxxX(56) Jaipur. I.T.O.AjmerI.A.C., Delhi.A.A.C.,DelhiC.I.T.,Delhi(57) toxxxX(109) xxxxx*This item will apply only to pending Assessments for period or periods before the integration or merger of the Indian States".(emphasis supplied)11. Jaipur was integrated into India on 7th April, 1949 but for the purposes of Income-tax it was integrated as from 1st April, 1950. In view of the aforementioned notification it is clear that the Income-tax Officer, Ajmer had jurisdiction over the residents of Jaipur after the issue of that notification only in respect of the assessments pending before him and not in respect of any other assessments.Quite clearly the assessees assessments were not pending before the I.T.O., Ajmer. Hence the contention advanced on behalf of the assessee that the I.T.O., Ajmer had jurisdiction over it in respect of the assessment years in question cannot be upheld. It was never urged either before the I.T.O., or before the Appellate Assistant Commissioner or even before the Tribunal that the I.T.o., Central Circle, had no jurisdiction per se over the assessee. That queston did not come up for consideration before any of the authorities under the Act. We are not called upon to decide that question nor is it possible to decide that question on the basis of the material before us.hence, the rule laid down by this court in Commr. of Income-tax, Bombay City v. Ramchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) relied on by the appellant has no application on the facts of this case.12. It was next contended by Mr. B. Sen, learned Counsel for the assessee that whether the I.T.O., Ajmer had jurisdiction over the assessee or not that Officer, having issued notices to the assessee under Section 34 and the assessee having submitted its returns in response to those notices, the I.T.O., Central Circle, was not competent to initiate assessment proceedings against the assessee. In support of that contention reliance was placed on the decision of the Madras High Court in Raman Chettiar v. Commr. of Income-tax, Madras, 42 ITR 700 (Mad). That decision was affirmed by this Court in Commr. of Income-tax, Madras v. S. Raman Chettiar, 55 ITR 630 = (AIR 1965 SC 1031 ). The question that arose for decision in Raman Chettiars case was whether a return, submitted to an Income-tax Officer having jurisdiction, in response to an invalid notice under Section 34, is a valid return. The High Court as well as this Court held that such a return was a valid return. But that is not the case here. herein, the return was submitted to an I.T.O., who had no jurisdiction territorial or otherwise over the assessee. Hence the rule laid down in Raman Chettiars case does not bear on the question arising for decision in this case. | 0[ds]3. From the above observations it is clear that the contention taken before the I.T.O., Central Circle was that the assessee should be asserted by theOfficer, Jaipur who possibly had acquired territorial jurisdiction over the assessee by the time the assessment proceedings were going on before the Central Circle. No objection appears to have been taken on the ground that the Ajmer I.T.O., was seized of the proceedings in view of the notices issued by him under Section 34. The contention now advanced, namely, that in view of the circumstances that the Ajmer I.T.O. had already issued notices under Section 34 and that the assessee had already submitted its returns in response to their notices the I.T.O., Central Circle was incompetent to initiate fresh proceedings under Section 34 against the assessee does not appear to have been taken before the I.T.O., Centralmay be noticed that by its letter datedthe assessee had requested theOfficer, Central Circle, to assess him on the basis of the returns submitted by it to theOfficer, Ajmer. TheOfficer Central Circle, complied with that request. The circumstance under which the I.T.O., Central Circle came to issue notices under Section 34 is set out in the order of the A.A.C. The A.A.C.s order indicates that in respect of Jaipur which was formerly a native State, there have been some changes as regards theset up. Possibly for some time after Jaipurs integration with India, Jaipur was under the jurisdiction of the I.T.O., Ajmer. But that is not clear from the records. All the same it is necessary to note that it was not the contention of the assessee that the I.T.O., Central Circle was not competent to initiate proceedings against it in view of the notices issued by the I.T.O., Ajmer. We have only to examine the correctness of that contention.Jaipur was integrated into India on 7th April, 1949 but for the purposes ofit was integrated as from 1st April, 1950. In view of the aforementioned notification it is clear that theOfficer, Ajmer had jurisdiction over the residents of Jaipur after the issue of that notification only in respect of the assessments pending before him and not in respect of any other assessments.Quite clearly the assessees assessments were not pending before the I.T.O., Ajmer. Hence the contention advanced on behalf of the assessee that the I.T.O., Ajmer had jurisdiction over it in respect of the assessment years in question cannot be upheld. It was never urged either before the I.T.O., or before the Appellate Assistant Commissioner or even before the Tribunal that the I.T.o., Central Circle, had no jurisdiction per se over the assessee. That queston did not come up for consideration before any of the authorities under the Act. We are not called upon to decide that question nor is it possible to decide that question on the basis of the material before us.hence, the rule laid down by this court in Commr. ofBombay City v. Ramchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) relied on by the appellant has no application on the facts of this case.12. It was next contended by Mr. B. Sen, learned Counsel for the assessee that whether the I.T.O., Ajmer had jurisdiction over the assessee or not that Officer, having issued notices to the assessee under Section 34 and the assessee having submitted its returns in response to those notices, the I.T.O., Central Circle, was not competent to initiate assessment proceedings against the assessee. In support of that contention reliance was placed on the decision of the Madras High Court in Raman Chettiar v. Commr. ofMadras, 42 ITR 700 (Mad). That decision was affirmed by this Court in Commr. ofMadras v. S. Raman Chettiar, 55 ITR 630 = (AIR 1965 SC 1031 ). The question that arose for decision in Raman Chettiars case was whether a return, submitted to anOfficer having jurisdiction, in response to an invalid notice under Section 34, is a valid return. The High Court as well as this Court held that such a return was a valid return. But that is not the case here. herein, the return was submitted to an I.T.O., who had no jurisdiction territorial or otherwise over the assessee. Hence the rule laid down in Raman Chettiars case does not bear on the question arising for decision in this case. | 0 | 2,551 | 795 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Department.8. There is no dispute that if the assessment proceedings under Section 34 initiated by the I.T.O., Ajmer, are valid proceedings, the I.T.O., Central Circle, would not have had jurisdiction to issue fresh notices under Section 34. The case for the department is that the I.T.O., Ajmer, had no jurisdiction over the assessee in respect of the assessment years with which we are concerned and consequently, the notices issued by him under Section 34 in respect of those years were invalid notices. We have to see whether that submission is correct. If we hold that the notices issued by the I.T.O., Ajmer was invalid notices then we have to uphold the judgment of the High Court. At no stage before the authorities under the Act the assessee had put forward the case that any I.T.O. other than I.T.O., Ajmer or I.T.O., Central Circle had jurisdiction over it in respect of the assessment years in question.9. Section 5, sub-section (6) of the Act provides:-"The Central Board of Revenue may, by notification in the official Gazette empower Commissioner of Income-tax, Appellate or Inspecting Assistant Commissioner of Income-tax and Income-tax Officers to perform such functions in respect of such classes of persons or such classes of income or such area as may be specified in the notification, and thereupon the functions so specified shall cease to be performed in respect of the specified classes of persons or classes of income or area by the other authorities appointed under sub-sections (2) and (3)".10. Ordinarily an assessee has to be assessed by the I.T.O., within whose territorial jurisdiction he resides. But, it is open to the Central Board of Revenue to assign any particular class of assessee or any particular type of assessments to an I.T.O., of its choice. It was urged on behalf of the Department that the I.T.O., Ajmer had no jurisdiction to assess the assessee in respect of the assessment years with which we are concerned in view of the notification issued by the Central Board of Revenue on July 1, 1952. The notification, to the extent relevant for our purpose may be set out. It reads thus :"Notification No.S.R.O. 1214 dated the 1st July, 1952.In exercise of the powers conferred by sub-section (6) of Section 5 of the Indian Income-tax Act, 1922 (XI of 1922), and in supersession of its Notification No.13/I.T. dated the 12th February, 1919, the Central Board of Revenue appoints the Officers specified in the 3rd, 4th, 5th and 6th columns of the Schedule annexed hereto, to perform all the functions of an Income-tax Officer, Inspecting, Assistant Commissioner of Income-tax, Appellate Assistant Commissioner of Income-tax and the Commissioner of Income-tax respectively in respect of the persons specified in the corresponding entry in the 2nd column thereof.Provided that nothing herein contained shall apply to cases or classes of cases assigned to a Commissioner of Income-tax appointed under sub-section (2) of Section 5 of the Indian Income-tax Act,1922, without reference to area.S.NoPersonsI.T.O.Ins. Asst. Commr., I/TaxA.A.C. of I/TaxCommr.of Income Taxx*xxxxxXxxxxxxX*77Persons (excluding those who fall under S. Nos. 69 and 76) not resident in the taxable territories and not assessed through statutory agents under S. 43 with any income for direct assessment etc., house property, interest etc. residing in the following Indian States :(1) xxxxxxX(2) xxxxxxX(56) Jaipur. I.T.O.AjmerI.A.C., Delhi.A.A.C.,DelhiC.I.T.,Delhi(57) toxxxX(109) xxxxx*This item will apply only to pending Assessments for period or periods before the integration or merger of the Indian States".(emphasis supplied)11. Jaipur was integrated into India on 7th April, 1949 but for the purposes of Income-tax it was integrated as from 1st April, 1950. In view of the aforementioned notification it is clear that the Income-tax Officer, Ajmer had jurisdiction over the residents of Jaipur after the issue of that notification only in respect of the assessments pending before him and not in respect of any other assessments.Quite clearly the assessees assessments were not pending before the I.T.O., Ajmer. Hence the contention advanced on behalf of the assessee that the I.T.O., Ajmer had jurisdiction over it in respect of the assessment years in question cannot be upheld. It was never urged either before the I.T.O., or before the Appellate Assistant Commissioner or even before the Tribunal that the I.T.o., Central Circle, had no jurisdiction per se over the assessee. That queston did not come up for consideration before any of the authorities under the Act. We are not called upon to decide that question nor is it possible to decide that question on the basis of the material before us.hence, the rule laid down by this court in Commr. of Income-tax, Bombay City v. Ramchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) relied on by the appellant has no application on the facts of this case.12. It was next contended by Mr. B. Sen, learned Counsel for the assessee that whether the I.T.O., Ajmer had jurisdiction over the assessee or not that Officer, having issued notices to the assessee under Section 34 and the assessee having submitted its returns in response to those notices, the I.T.O., Central Circle, was not competent to initiate assessment proceedings against the assessee. In support of that contention reliance was placed on the decision of the Madras High Court in Raman Chettiar v. Commr. of Income-tax, Madras, 42 ITR 700 (Mad). That decision was affirmed by this Court in Commr. of Income-tax, Madras v. S. Raman Chettiar, 55 ITR 630 = (AIR 1965 SC 1031 ). The question that arose for decision in Raman Chettiars case was whether a return, submitted to an Income-tax Officer having jurisdiction, in response to an invalid notice under Section 34, is a valid return. The High Court as well as this Court held that such a return was a valid return. But that is not the case here. herein, the return was submitted to an I.T.O., who had no jurisdiction territorial or otherwise over the assessee. Hence the rule laid down in Raman Chettiars case does not bear on the question arising for decision in this case.
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0
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3. From the above observations it is clear that the contention taken before the I.T.O., Central Circle was that the assessee should be asserted by theOfficer, Jaipur who possibly had acquired territorial jurisdiction over the assessee by the time the assessment proceedings were going on before the Central Circle. No objection appears to have been taken on the ground that the Ajmer I.T.O., was seized of the proceedings in view of the notices issued by him under Section 34. The contention now advanced, namely, that in view of the circumstances that the Ajmer I.T.O. had already issued notices under Section 34 and that the assessee had already submitted its returns in response to their notices the I.T.O., Central Circle was incompetent to initiate fresh proceedings under Section 34 against the assessee does not appear to have been taken before the I.T.O., Centralmay be noticed that by its letter datedthe assessee had requested theOfficer, Central Circle, to assess him on the basis of the returns submitted by it to theOfficer, Ajmer. TheOfficer Central Circle, complied with that request. The circumstance under which the I.T.O., Central Circle came to issue notices under Section 34 is set out in the order of the A.A.C. The A.A.C.s order indicates that in respect of Jaipur which was formerly a native State, there have been some changes as regards theset up. Possibly for some time after Jaipurs integration with India, Jaipur was under the jurisdiction of the I.T.O., Ajmer. But that is not clear from the records. All the same it is necessary to note that it was not the contention of the assessee that the I.T.O., Central Circle was not competent to initiate proceedings against it in view of the notices issued by the I.T.O., Ajmer. We have only to examine the correctness of that contention.Jaipur was integrated into India on 7th April, 1949 but for the purposes ofit was integrated as from 1st April, 1950. In view of the aforementioned notification it is clear that theOfficer, Ajmer had jurisdiction over the residents of Jaipur after the issue of that notification only in respect of the assessments pending before him and not in respect of any other assessments.Quite clearly the assessees assessments were not pending before the I.T.O., Ajmer. Hence the contention advanced on behalf of the assessee that the I.T.O., Ajmer had jurisdiction over it in respect of the assessment years in question cannot be upheld. It was never urged either before the I.T.O., or before the Appellate Assistant Commissioner or even before the Tribunal that the I.T.o., Central Circle, had no jurisdiction per se over the assessee. That queston did not come up for consideration before any of the authorities under the Act. We are not called upon to decide that question nor is it possible to decide that question on the basis of the material before us.hence, the rule laid down by this court in Commr. ofBombay City v. Ramchhoddas Karsondas, 36 ITR 569 = (AIR 1959 SC 1154 ) relied on by the appellant has no application on the facts of this case.12. It was next contended by Mr. B. Sen, learned Counsel for the assessee that whether the I.T.O., Ajmer had jurisdiction over the assessee or not that Officer, having issued notices to the assessee under Section 34 and the assessee having submitted its returns in response to those notices, the I.T.O., Central Circle, was not competent to initiate assessment proceedings against the assessee. In support of that contention reliance was placed on the decision of the Madras High Court in Raman Chettiar v. Commr. ofMadras, 42 ITR 700 (Mad). That decision was affirmed by this Court in Commr. ofMadras v. S. Raman Chettiar, 55 ITR 630 = (AIR 1965 SC 1031 ). The question that arose for decision in Raman Chettiars case was whether a return, submitted to anOfficer having jurisdiction, in response to an invalid notice under Section 34, is a valid return. The High Court as well as this Court held that such a return was a valid return. But that is not the case here. herein, the return was submitted to an I.T.O., who had no jurisdiction territorial or otherwise over the assessee. Hence the rule laid down in Raman Chettiars case does not bear on the question arising for decision in this case.
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ANIL KUMAR Vs. UNION OF INDIA AND ORS | the benchmark violated the O.Ms issued by the Department of Personnel and Training. 5. The Tribunal rejected that contention holding that since CSIR had adopted the requirement of conveying the ACRs from a particular date in the future, the decision could not be questioned. On the issue of promotion, it has been held that this involved a selection on the basis of performance in service and in the interview and since the Departmental Promotion Committee had graded the appellant as “good”, he was not considered for promotion. This view of the Central Administrative Tribunal was challenged before the High Court of Punjab and Haryana. 6. By a judgment dated 13 July 2006, the writ petition filed by the appellant was dismissed. 7. The first grievance of the appellant was that he was entitled to financial upgradation under the MACP scheme adopted by CSIR. It is not in dispute that the benchmark prescribed was “Very Good” for financial upgradation to the grade pay of Rs. 7600/- and above. CSIR, by its letter dated 30 December 2013, notified the eligibility of the appellant for the grant of financial upgradation with effect from 10 May 2011. Similarly, by its circular dated 6 February 2014, CSIR issued an All India Final Seniority List of Common Cadre Officers as on 1 January 2014. The name of the appellant stood at Serial No. 2 in the category of Deputy Secretary/Controller of Administration.8. On 9 May 2014, CSIR declared the result of the exercise conducted by the Screening Committee which met on 21 April 2014. The name of the appellant did not appear in the list of officers for financial upgradation from 10 May 2011. 9. The ACRs of the appellant were below the benchmark required for certain years namely 2003-2004, 2008-2009 and 2009-2010. 10. The gradings were eventually communicated to the appellant on 9 July 2014 to which he submitted a representation and appeared for the interview for regular promotion for 2013- 2014. The grievance is that the representation was not considered.When the panel for the post of Senior Deputy Secretary/Senior Controller of Administration for 2013-2014 was notified, officers junior to the appellant were empaneled for promotion.11. The appellant was neither granted a financial upgradation nor was he promoted as a part of the exercise of regular promotion to the higher post. 12. The High Court affirmed the view of the Tribunal and rejected the writ petition filed by the appellant. 13. In Dev Dutt vs. Union of India & Ors.(2008) 8 SCC 725 a two Judge Bench of this Court held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbitrary. This Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants. 14. A three Judge Bench of this Court has in Sukhdev Singh vs. Union of India & Ors.(2013) 9 SCC 566 affirmed the correctness of the view taken in Dev Dutt (supra) noting that an earlier three Judge Bench in Abhijit Ghosh Dastidar vs. Union of India & Ors. (2009) 16 SCC 146 had adopted the same principle.15. The three Judge Bench in Sukhdev Singh (supra), held thus:“8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.”16. In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. 17. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.18. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt’s case (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception. 19. The appellant has since retired from service on 30 September 2014. 20. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted | 1[ds]16. In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. 17. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.18. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Devcase (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception. 19. The appellant has since retired from service on 30 September 2014.20. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted | 1 | 1,302 | 260 | ### 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 benchmark violated the O.Ms issued by the Department of Personnel and Training. 5. The Tribunal rejected that contention holding that since CSIR had adopted the requirement of conveying the ACRs from a particular date in the future, the decision could not be questioned. On the issue of promotion, it has been held that this involved a selection on the basis of performance in service and in the interview and since the Departmental Promotion Committee had graded the appellant as “good”, he was not considered for promotion. This view of the Central Administrative Tribunal was challenged before the High Court of Punjab and Haryana. 6. By a judgment dated 13 July 2006, the writ petition filed by the appellant was dismissed. 7. The first grievance of the appellant was that he was entitled to financial upgradation under the MACP scheme adopted by CSIR. It is not in dispute that the benchmark prescribed was “Very Good” for financial upgradation to the grade pay of Rs. 7600/- and above. CSIR, by its letter dated 30 December 2013, notified the eligibility of the appellant for the grant of financial upgradation with effect from 10 May 2011. Similarly, by its circular dated 6 February 2014, CSIR issued an All India Final Seniority List of Common Cadre Officers as on 1 January 2014. The name of the appellant stood at Serial No. 2 in the category of Deputy Secretary/Controller of Administration.8. On 9 May 2014, CSIR declared the result of the exercise conducted by the Screening Committee which met on 21 April 2014. The name of the appellant did not appear in the list of officers for financial upgradation from 10 May 2011. 9. The ACRs of the appellant were below the benchmark required for certain years namely 2003-2004, 2008-2009 and 2009-2010. 10. The gradings were eventually communicated to the appellant on 9 July 2014 to which he submitted a representation and appeared for the interview for regular promotion for 2013- 2014. The grievance is that the representation was not considered.When the panel for the post of Senior Deputy Secretary/Senior Controller of Administration for 2013-2014 was notified, officers junior to the appellant were empaneled for promotion.11. The appellant was neither granted a financial upgradation nor was he promoted as a part of the exercise of regular promotion to the higher post. 12. The High Court affirmed the view of the Tribunal and rejected the writ petition filed by the appellant. 13. In Dev Dutt vs. Union of India & Ors.(2008) 8 SCC 725 a two Judge Bench of this Court held that fairness in public administration and transparency require that all entries in the Annual Confidential Reports of a public servant must be communicated within a reasonable period in order to enable the employee to make a representation for upgradation. The view of the Court was that non-communication of entries in the ACRs has civil consequences since it may affect the chances of the employee for promotion and other benefits. A failure to communicate would be arbitrary. This Court held that these directions would apply to employees of statutory authorities, public sector corporations and other instrumentalities of the State, in addition to government servants. 14. A three Judge Bench of this Court has in Sukhdev Singh vs. Union of India & Ors.(2013) 9 SCC 566 affirmed the correctness of the view taken in Dev Dutt (supra) noting that an earlier three Judge Bench in Abhijit Ghosh Dastidar vs. Union of India & Ors. (2009) 16 SCC 146 had adopted the same principle.15. The three Judge Bench in Sukhdev Singh (supra), held thus:“8. In our opinion, the view taken in Dev Dutt that every entry in ACR of a public servant must be communicated to him/her within a reasonable period is legally sound and helps in achieving threefold objectives. First, the communication of every entry in the ACR to a public servant helps him/her to work harder and achieve more that helps him in improving his work and give better results. Second and equally important, on being made aware of the entry in the ACR, the public servant may feel dissatisfied with the same. Communication of the entry enables him/her to make representation for upgradation of the remarks entered in the ACR. Third, communication of every entry in the ACR brings transparency in recording the remarks relating to a public servant and the system becomes more conforming to the principles of natural justice. We, accordingly, hold that every entry in ACR - poor, fair, average, good or very good - must be communicated to him/her within a reasonable period.”16. In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. 17. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.18. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Dev Dutt’s case (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception. 19. The appellant has since retired from service on 30 September 2014. 20. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted
### Response:
1
### Explanation:
16. In view of the above statement of law, both the Tribunal and the High Court were in error in coming to the conclusion that CSIR being an autonomous entity and having adopted the O.Ms of the Department of Personnel and Training with effect from a specified date, the appellant could not make a grievance of the non-communication of the ACRs for the relevant period. 17. The failure to communicate the ACRs deprived the appellant of the opportunity to submit his representation in the matter of financial upgradation. Subsequently, the appellant was furnished with an opportunity to submit his representation before his case was taken up for regular promotion, but his representation was not considered.18. The appellant did not have the benefit of submitting his representation when the Screening Committee took up the case for financial upgradation. CSIR by reason of its autonomy may have certain administrative privileges. No authority can, however, claim a privilege not to comply with a judgment of this Court. Once the law was enunciated in Devcase (supra), all instrumentalities of the State were bound to follow the principles laid down by this Court. CSIR was no exception. 19. The appellant has since retired from service on 30 September 2014.20. The grant of MACP benefit is not a matter of right and it is after the Screening Committee finds that the officer meets the benchmark that an upgradation can be granted
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Maharashtra Hybrid Seeds Company Limited Vs. Alavalapati Chandra Reddy and Others | K. VENKATASWAMI, J. The appellant-company, aggrieved by the summary dismissal of its Revision Petition No. 225/93 on 27.7.93 by the National Consumer Disputes Redressal Commission, New Delhi, has filed this appeal by special leave. The respondents 1 and 2 moved the District Forum, Cuddapah, in Consumer Dispute No. 441/91, complaining that the sum-flower seeds produced by the appellant and sold through the third respondent, on sowing, did not germinate by reason of defects in the seeds. They claimed, apart from the cost of seeds, a compensation of Rs. 5, 000/- per acre from the appellant. The claim was resisted, inter alia, contending that the seeds Act, 1966 and the Rules framed thereunder being a complete Code, provides remedies to the aggrieved party and, therefore, the complaint preferred before the District Forum was not maintainable. It was also contended that the test to find out the correctness of the complaint regarding defective seeds as provided under Section 13(1)(C) of the Consumer Protection Act, 1986 has not been adopted and without that, the appellant cannot be held liable for compensation. It was further contended that the complainants are not consumers inasmuch as the purchase of t he seeds itself was for growing the sum-flower plants for commercial purpose. The District Forum, on a consideration f the materials placed before it, held that the appellant was liable to pay compensation at the rate of Rs. 2, 000/- per acre in addition to the cost of the seeds.Aggrieved by the order of the District Forum, the appellant-company preferred an appeal before the State Commission, Andhra Pradesh at Hyderabad. The State Commission elaborately considered the contentions raised before it and ultimately affirmed the order of the District Forum. The further revision before the National Forum, as noticed above, was dismissed summarily.We would have appreciated the National Forum, had it discussed the matter on merits and disposed of the same after considering the question of law raised before it. Unfortunately, the National Forum has summarily dismissed the Revision Petition. The question of law raised, namely, whether respondents 1 and 2 were justified in moving the Consumer Forum for redressal on the facts of the case, is not free from doubt. However, we do not consider it necessary to decide that question of law in this case as the findings of the State Commission on facts stare at the appellant, which cannot be lightly brush ed aside. The State Commission, on the materials placed before it, found as follows:- "In this case, the complainants alleged that they have purchased the seeds from the opposite parties. To this extent, there is no dispute. According to the complainants, they purchased the seeds and sowed them. The Agricultural Officer reported to the first opposite party on 22.11.1991 through a letter which mentioned that he sent the ryots of which mentioned that he sent the ryots of Lingala to them to purchase the sun flower seeds on permits. But those seeds have not germinated and that he personally went and saw. He therefore wrote the above letter asking the opposite parties to give compensation to them. It was further mentioned compensation to them. It was further mentioned that they would be visiting the place on 27th. But they have not visited the place. To the aforesaid letter, no reply was sent by the opposite parties. Thus, it is clear that it is on the permit granted by the Agricultural Officer that the complainants purchased seeds from the opposite parties and that the same Agricultural Officer visited the land and found that there was no germination. In view of the letter written by the Agricultural Officer to the opposite parties to which they sent no reply it is clear that the same seeds that were purchased from the opposite parties were sown and they did not germinate. In view of the aforesaid letter of the Agricultural Officer, the District Forum felt that the seeds need not be sent for analysis. Moreover, if the opposite parties have disputed that the seeds were not defective they would have applied to the District Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstances that it has not on its own accord sent the seeds for analysis by an appropriate laboratory.............................................................It is clear from the letter of the Agricultural Officer that the opposite parties in spite of their promise never visited the fields of the complainants. The opposite parties did not adduce any material to show that the complainants did not manure properly or that there is some defect in the field. In the absence of such evidence and in view of the conduct of the opposite parties not visiting the fields and having regard to the allegation on the complaint that there were rain in the month of September, 1991 and the complainants sowed the seeds and its cannot be said that there is any defect either in the manure or in preparation of the soil for sowing sunflower seeds."In the light of above findings and in view of the conduct of the appellant in this case, we do not consider that we should exercise our jurisdiction under Article 136 of the Constitution of India to interfere with the order under appeal. | 0[ds]In the light of above findings and in view of the conduct of the appellant in this case, we do not consider that we should exercise our jurisdiction under Article 136 of the Constitution of India to interfere with the order under appeal. | 0 | 1,032 | 49 | ### 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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K. VENKATASWAMI, J. The appellant-company, aggrieved by the summary dismissal of its Revision Petition No. 225/93 on 27.7.93 by the National Consumer Disputes Redressal Commission, New Delhi, has filed this appeal by special leave. The respondents 1 and 2 moved the District Forum, Cuddapah, in Consumer Dispute No. 441/91, complaining that the sum-flower seeds produced by the appellant and sold through the third respondent, on sowing, did not germinate by reason of defects in the seeds. They claimed, apart from the cost of seeds, a compensation of Rs. 5, 000/- per acre from the appellant. The claim was resisted, inter alia, contending that the seeds Act, 1966 and the Rules framed thereunder being a complete Code, provides remedies to the aggrieved party and, therefore, the complaint preferred before the District Forum was not maintainable. It was also contended that the test to find out the correctness of the complaint regarding defective seeds as provided under Section 13(1)(C) of the Consumer Protection Act, 1986 has not been adopted and without that, the appellant cannot be held liable for compensation. It was further contended that the complainants are not consumers inasmuch as the purchase of t he seeds itself was for growing the sum-flower plants for commercial purpose. The District Forum, on a consideration f the materials placed before it, held that the appellant was liable to pay compensation at the rate of Rs. 2, 000/- per acre in addition to the cost of the seeds.Aggrieved by the order of the District Forum, the appellant-company preferred an appeal before the State Commission, Andhra Pradesh at Hyderabad. The State Commission elaborately considered the contentions raised before it and ultimately affirmed the order of the District Forum. The further revision before the National Forum, as noticed above, was dismissed summarily.We would have appreciated the National Forum, had it discussed the matter on merits and disposed of the same after considering the question of law raised before it. Unfortunately, the National Forum has summarily dismissed the Revision Petition. The question of law raised, namely, whether respondents 1 and 2 were justified in moving the Consumer Forum for redressal on the facts of the case, is not free from doubt. However, we do not consider it necessary to decide that question of law in this case as the findings of the State Commission on facts stare at the appellant, which cannot be lightly brush ed aside. The State Commission, on the materials placed before it, found as follows:- "In this case, the complainants alleged that they have purchased the seeds from the opposite parties. To this extent, there is no dispute. According to the complainants, they purchased the seeds and sowed them. The Agricultural Officer reported to the first opposite party on 22.11.1991 through a letter which mentioned that he sent the ryots of which mentioned that he sent the ryots of Lingala to them to purchase the sun flower seeds on permits. But those seeds have not germinated and that he personally went and saw. He therefore wrote the above letter asking the opposite parties to give compensation to them. It was further mentioned compensation to them. It was further mentioned that they would be visiting the place on 27th. But they have not visited the place. To the aforesaid letter, no reply was sent by the opposite parties. Thus, it is clear that it is on the permit granted by the Agricultural Officer that the complainants purchased seeds from the opposite parties and that the same Agricultural Officer visited the land and found that there was no germination. In view of the letter written by the Agricultural Officer to the opposite parties to which they sent no reply it is clear that the same seeds that were purchased from the opposite parties were sown and they did not germinate. In view of the aforesaid letter of the Agricultural Officer, the District Forum felt that the seeds need not be sent for analysis. Moreover, if the opposite parties have disputed that the seeds were not defective they would have applied to the District Forum to send the samples of seeds from the said batch for analysis by appropriate laboratory. But the opposite parties have not chosen to file any application for sending the seeds to any laboratory. Since it is probable that the complainants have sown all the seeds purchased by them, they were not in a position to send seeds for analysis. In these circumstances, the order of the District Forum is not vitiated by the circumstances that it has not on its own accord sent the seeds for analysis by an appropriate laboratory.............................................................It is clear from the letter of the Agricultural Officer that the opposite parties in spite of their promise never visited the fields of the complainants. The opposite parties did not adduce any material to show that the complainants did not manure properly or that there is some defect in the field. In the absence of such evidence and in view of the conduct of the opposite parties not visiting the fields and having regard to the allegation on the complaint that there were rain in the month of September, 1991 and the complainants sowed the seeds and its cannot be said that there is any defect either in the manure or in preparation of the soil for sowing sunflower seeds."In the light of above findings and in view of the conduct of the appellant in this case, we do not consider that we should exercise our jurisdiction under Article 136 of the Constitution of India to interfere with the order under appeal.
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0
### Explanation:
In the light of above findings and in view of the conduct of the appellant in this case, we do not consider that we should exercise our jurisdiction under Article 136 of the Constitution of India to interfere with the order under appeal.
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Rana Vidya Bhushan Singh Vs. Ratiram | support of the appeal by counsel for the plaintiffs :(1) that there was no concluded agreement of lease between Rani Vidya Vatimother of the plaintiffs-and the defendant;(2) that the agreement of lease being unregistered was inadmissible in evidence; and(3) that Rani Vidya Vati had no authority to grant the lease to the defendant.In our view all the contentions are without substance.The agreement of lease recited:"Whereas the parties have agreed to lease out the lands as entered in the Schedule to be annexed hereunto and duly approved and signed by either of the Senior or Junior Rani Saniba for a period of fifteen years and on the consideration of Rs. 500/- (five hundred) per bigha for ghasni or waste lands, it is therefore mutually settled as follows :"The original lease agreement which was in the possession of the plaintiffs was not tendered in evidence. The defendant tendered in evidence a copy of the agreement of lease. It was urged on behalf of the plaintiffs that there was no concluded agreement of lease, because the schedule of lands" was not incorporated in the agreement. But the defendant had stated before the Trial Court that an extract from Jamabandi relating to Khasra No. 331 was handed over to the Senior Rani Sahiba soon after the execution of the agreement. That evidence was accepted by the Trial Court, the District Court and the Judicial Commissioner. On the findings recorded by the Courts below it is clear that an extract from Jantabandi relating to Khasra No. 331 was handed over to the Senior Rani for annexing it to the agreement of lease pursuant to the covenants contained therein. In our judgment, the finding of the Judicial Commissioner that there was a concluded agreement must be accepted.5. The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement of lease. Section 49 of the Indian Registration Act, 1908, insofar as it is relevant to this appeal provides :"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-(a) affect any immovable property comprised therein, or(b) x x x x x(c) be received as evidence of any transaction affecting such property for x x x x unless it has been registered :Provided that an unregistered document affecting immovable property and "required by this Act or the Transfer of Property Act, 1882,. to be registered may be received as evidence x x x x x of any collateral transaction not required to be effected by registered instrument.A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 :"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioners Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."It may be sufficient to refer to the judgment of this Court in Padma Vithoba Chakkavva v. Mohd. Multani. In that case one R executed a usufructuary mortgage of certain lands in favour of M. He later executed a sale deed of the same lands in favour of Rajanna. Rajanna found it difficult to obtain possession. Rajanna, R & M entered into an arrangement under which the sale deed was cancelled by making endorsements on the deed and the lands were thereafter sold by R to M. After the death of Rajanna his legal representative filed a suit against M for possession of lands. M pleaded that the sale deed of 1923 was cancelled. The plaintiff urged that the endorsement was ineffective, as it was not registered and the sale deed in favour of M passed no title to him. In dealing with the question that the endorsement of cancellation was inadmissible in evidence, Venkatarama Aiyar, J. observed at p. 236 :"The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923, has been held .... to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter."In support of these observations the learned Judge referred to Varatha Pillai v. Jeevanatkammal (2).6. The contention that Rani Vidya Vati mother of the plaintiffs had no power to enter into an agreement of lease and to induct the defendant into the land was never argued before the District Court and the Court of the Judicial Commissioner. The authority of Rani Vidya Vati to deal with the property of the minor plaintiffs was not challenged. We cannot pursue this matter in this Court, because according to our settled practice we do not allow questions not raised before tie High Court, to be raised if they require investigation of facts.7. | 0[ds]In our view all the contentions are without substance.The agreement of leasethe parties have agreed to lease out the lands as entered in the Schedule to be annexed hereunto and duly approved and signed by either of the Senior or Junior Rani Saniba for a period of fifteen years and on the consideration of Rs. 500/- (five hundred) per bigha for ghasni or waste lands, it is therefore mutually settled as follows :"The original lease agreement which was in the possession of the plaintiffs was not tendered in evidence. The defendant tendered in evidence a copy of the agreement of lease. It was urged on behalf of the plaintiffs that there was no concluded agreement of lease, because the schedule of lands" was not incorporated in the agreement. But the defendant had stated before the Trial Court that an extract from Jamabandi relating to Khasra No. 331 was handed over to the Senior Rani Sahiba soon after the execution of the agreement. That evidence was accepted by the Trial Court, the District Court and the Judicial Commissioner. On the findings recorded by the Courts below it is clear that an extract from Jantabandi relating to Khasra No. 331 was handed over to the Senior Rani for annexing it to the agreement of lease pursuant to the covenants contained therein. In our judgment, the finding of the Judicial Commissioner that there was a concluded agreement must be accepted.The contention that Rani Vidya Vati mother of the plaintiffs had no power to enter into an agreement of lease and to induct the defendant into the land was never argued before the District Court and the Court of the Judicial Commissioner. The authority of Rani Vidya Vati to deal with the property of the minor plaintiffs was not challenged. We cannot pursue this matter in this Court, because according to our settled practice we do not allow questions not raised before tie High Court, to be raised if they require investigation of facts.The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement ofdocument required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. | 0 | 1,489 | 486 | ### 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:
support of the appeal by counsel for the plaintiffs :(1) that there was no concluded agreement of lease between Rani Vidya Vatimother of the plaintiffs-and the defendant;(2) that the agreement of lease being unregistered was inadmissible in evidence; and(3) that Rani Vidya Vati had no authority to grant the lease to the defendant.In our view all the contentions are without substance.The agreement of lease recited:"Whereas the parties have agreed to lease out the lands as entered in the Schedule to be annexed hereunto and duly approved and signed by either of the Senior or Junior Rani Saniba for a period of fifteen years and on the consideration of Rs. 500/- (five hundred) per bigha for ghasni or waste lands, it is therefore mutually settled as follows :"The original lease agreement which was in the possession of the plaintiffs was not tendered in evidence. The defendant tendered in evidence a copy of the agreement of lease. It was urged on behalf of the plaintiffs that there was no concluded agreement of lease, because the schedule of lands" was not incorporated in the agreement. But the defendant had stated before the Trial Court that an extract from Jamabandi relating to Khasra No. 331 was handed over to the Senior Rani Sahiba soon after the execution of the agreement. That evidence was accepted by the Trial Court, the District Court and the Judicial Commissioner. On the findings recorded by the Courts below it is clear that an extract from Jantabandi relating to Khasra No. 331 was handed over to the Senior Rani for annexing it to the agreement of lease pursuant to the covenants contained therein. In our judgment, the finding of the Judicial Commissioner that there was a concluded agreement must be accepted.5. The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement of lease. Section 49 of the Indian Registration Act, 1908, insofar as it is relevant to this appeal provides :"No document required by Section 17 or by any provision of the Transfer of Property Act, 1882, to be registered shall-(a) affect any immovable property comprised therein, or(b) x x x x x(c) be received as evidence of any transaction affecting such property for x x x x unless it has been registered :Provided that an unregistered document affecting immovable property and "required by this Act or the Transfer of Property Act, 1882,. to be registered may be received as evidence x x x x x of any collateral transaction not required to be effected by registered instrument.A document required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property. As stated by Mulla in his Indian Registration Act, 7th En., at p. 189 :"The High Courts of Calcutta, Bombay, Allahabad, Madras, Patna, Lahore, Assam, Nagpur, Pepsu, Rajasthan, Orissa, Rangoon and Jammu & Kashmir; the former Chief Court of Oudh; the Judicial Commissioners Court of Peshawar, Ajmer and Himachal Pradesh and the Supreme Court have held that a document which requires registration under Section 17 and which is not admissible for want of registration to prove a gift or mortgage or sale or lease is nevertheless admissible to prove the character of the possession of the person who holds under it."It may be sufficient to refer to the judgment of this Court in Padma Vithoba Chakkavva v. Mohd. Multani. In that case one R executed a usufructuary mortgage of certain lands in favour of M. He later executed a sale deed of the same lands in favour of Rajanna. Rajanna found it difficult to obtain possession. Rajanna, R & M entered into an arrangement under which the sale deed was cancelled by making endorsements on the deed and the lands were thereafter sold by R to M. After the death of Rajanna his legal representative filed a suit against M for possession of lands. M pleaded that the sale deed of 1923 was cancelled. The plaintiff urged that the endorsement was ineffective, as it was not registered and the sale deed in favour of M passed no title to him. In dealing with the question that the endorsement of cancellation was inadmissible in evidence, Venkatarama Aiyar, J. observed at p. 236 :"The endorsement of cancellation on the back of the sale deed in favour of Rajanna dated December 21, 1923, has been held .... to be inadmissible in evidence as it is not registered. The result of it is only that there was no retransfer of title by Rajanna to the second defendant, and the family would in consequence continue to be the owner, and that is why the appellant is entitled to redeem. But the endorsement taken along with the sale deed by the second defendant in favour of the first defendant is admissible in evidence to show the character of possession of the latter."In support of these observations the learned Judge referred to Varatha Pillai v. Jeevanatkammal (2).6. The contention that Rani Vidya Vati mother of the plaintiffs had no power to enter into an agreement of lease and to induct the defendant into the land was never argued before the District Court and the Court of the Judicial Commissioner. The authority of Rani Vidya Vati to deal with the property of the minor plaintiffs was not challenged. We cannot pursue this matter in this Court, because according to our settled practice we do not allow questions not raised before tie High Court, to be raised if they require investigation of facts.7.
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0
### Explanation:
In our view all the contentions are without substance.The agreement of leasethe parties have agreed to lease out the lands as entered in the Schedule to be annexed hereunto and duly approved and signed by either of the Senior or Junior Rani Saniba for a period of fifteen years and on the consideration of Rs. 500/- (five hundred) per bigha for ghasni or waste lands, it is therefore mutually settled as follows :"The original lease agreement which was in the possession of the plaintiffs was not tendered in evidence. The defendant tendered in evidence a copy of the agreement of lease. It was urged on behalf of the plaintiffs that there was no concluded agreement of lease, because the schedule of lands" was not incorporated in the agreement. But the defendant had stated before the Trial Court that an extract from Jamabandi relating to Khasra No. 331 was handed over to the Senior Rani Sahiba soon after the execution of the agreement. That evidence was accepted by the Trial Court, the District Court and the Judicial Commissioner. On the findings recorded by the Courts below it is clear that an extract from Jantabandi relating to Khasra No. 331 was handed over to the Senior Rani for annexing it to the agreement of lease pursuant to the covenants contained therein. In our judgment, the finding of the Judicial Commissioner that there was a concluded agreement must be accepted.The contention that Rani Vidya Vati mother of the plaintiffs had no power to enter into an agreement of lease and to induct the defendant into the land was never argued before the District Court and the Court of the Judicial Commissioner. The authority of Rani Vidya Vati to deal with the property of the minor plaintiffs was not challenged. We cannot pursue this matter in this Court, because according to our settled practice we do not allow questions not raised before tie High Court, to be raised if they require investigation of facts.The agreement was unregistered. It could not create in favour of the defendant the right of a tenant for a period of fifteen years. The agreement was on that account inadmissible in evidence to support that claim. But in support of the plea that his possession was that of a tenant the defendant was entitled to rely upon the recitals contained in that agreement ofdocument required by law to be registered, if unregistered, is inadmissible as evidence of a transaction affecting immovable property, but it may be admitted as evidence of collateral facts, or for any collateral purpose, that is for any purpose other than that of creating, declaring, assigning, limiting or extinguishing a right to immovable property.
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Joint Chief Controller Of Imports And Exports, Madras Vs. M/S. Aminchand Mutha Etc | the quotas for the partners were to take effect only after the date of approval. If the division of quota has to be recognised by the Chief Controller on production of evidence required by Instruction 72 and this division has to be in accordance with the agreement between the partners of a dissolved firm, the approval must relate back to the date of agreement, for it is the agreement that is being recognised by the Chief Controller. In such a case the fact that the Chief Controller says that in future the quota would be divided, only means that the original quota of the undissolved firm would from the date of the agreement of dissolution be divided between partners as provided thereunder.11. Further we should like to make it clear that quotas should not be confused with licences. Quotas are merely for the purpose of informing the licensing authority that a particular person has been recognised as an established importer for import of certain things. Thereafter it is for the licensing authority to issue a licence to the quota holder in accordance with the licensing policy for the half year with which the licence deals. For example, if in a particular half year there is an order of the Central Government prohibiting the import of certain goods which are within the quota rights, the licensing authority would be entitled to refuse the issue of licence for import of such goods whose import has been banned by the Central Government under the Act by notified order. Thus the approval of the Chief Controller under instruction 71 is a mere recognition of the division made by the partners of dissolved firm by agreement between themselves and in that view the recognition must clearly relate back to the date of the agreement. Further when the Chief Controller says in his letter that in future the division would be recognised in a certain ratio based on the agreement it only means that the Chief Controller has approved of the division made by the parties and such approval then must relate back to the date of the agreement between the parties. We, therefore, hold that the view taken by the Madras High Court that the approval by the Chief Controller relates back to the date of agreement is correct.12. It was next urged that the application when it was made to the Joint Chief Controller was not complete inasmuch as it did not mention what quota the particular partner had. That is undoubtedly so for the applications in the present cases stated that the firm had been dissolved and application had been made to the Chief Controller for division of the quota of the original firm between the partners according to the agreement between them. To that extent the application was defective. It is pointed out that under Instruction 13 application for licence has to be made before a certain date and has to be complete in all respects. It was further urged that it is always open to the Joint Chief Controller to reject an application which is defective and is thus incomplete. Assuming that is so, one should have expected such a defective application being dismissed immediately after the last date for making the application had expired and the Joint Chief Controller should have given that as the reason for the rejection of the application for licence. But this was not done in the present cases and the reason for rejection of the application was not that it was not complete when made. Further it appears that it is not unusual for licences to be granted after the import period is over. It is also not denied that it was open to the Chief Controller in his discretion to say that the division of quota rights would be recognised from the date of the agreement even though the approval came must later. If that is so, it would mean that the applicant for division of quota would be entirely at the mercy of the Chief Controller because there is nothing in the Red Book to show under what circumstances the Chief Controller can grant recognition from the date of the agreement even though the approval comes much later. On the whole, therefore, we are of opinion that the view taken by the Madras High Court is correct as the grant of approval in accordance with the agreement is obligatory on the Chief Controller if the evidence required under Instruction 72 has been produced to his satisfaction.13. The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it January - June 1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under S. 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under S. 3. The High Court has found that no such order under S. 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pensunless there is an order of the Central Government to that effect published in the official gazette. We, therefore, agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January - June 1957 even after October 1, 1957. | 0[ds]We have already pointed out that on a proper interpretation of instruction 71, there is no doubt that the Chief Controller is bound to divide the quota of a firm consisting of partners which has been dissolved in accordance with the provisions of the agreement between the partners provided the necessary evidence has been produced before him, as required by instruction 72 in that behalf. Such being the nature of the proceeding before the Chief Controller it follows that when he gives approval to the division of the quota between the partners of a dissolved firm in accordance with the agreement between them, the approval must take effect from the date of the agreement between the partners. It might have been a different matter if the Chief Controller had the power to refuse division of the quota rights under these instructions; but he has no such power and must divide the quota in accordance with the agreement if he is satisfied as to the dissolution on the evidence produced in accordance with instruction 72. If such approval by the Chief Controller were not to date back to the date of agreement it would mean that the partners who were otherwise entitled to approval under instructions 71 and 72 might lose the advantage that they would have before the licensing authority by delay in the approval by the Chief Controller. In this connection our attention was drawn to the opening words in instruction 71 which provided that "the reconstituted firm will not be entitled to the quotas of the original firm until the transfer of the quota rights in their favour has been approved by the Chief Controller." It is true that these words make it necessary that there should be approval of the Chief Controller before a partner of a dissolved firm can say that he holds a quota. But these words do not mean that such approval will not date back to the date of agreement dividing the quota rights for the Chief Controller, as already indicated, has to divide the quota rights once he is satisfied as to dissolution on the production of evidence mentioned in instruction 72.In such circumstances it would in our opinion be fair to hold that the Chief Controllers approval dates back to the date of agreement so that such persons may not suffer on account of the delay in the Chief Controllers office in the matter of accordingthe approval of the Chief Controller under instruction 71 is a mere recognition of the division made by the partners of dissolved firm by agreement between themselves and in that view the recognition must clearly relate back to the date of the agreement. Further when the Chief Controller says in his letter that in future the division would be recognised in a certain ratio based on the agreement it only means that the Chief Controller has approved of the division made by the parties and such approval then must relate back to the date of the agreement between the parties. We, therefore, hold that the view taken by the Madras High Court that the approval by the Chief Controller relates back to the date of agreement isthe whole, therefore, we are of opinion that the view taken by the Madras High Court is correct as the grant of approval in accordance with the agreement is obligatory on the Chief Controller if the evidence required under Instruction 72 has been produced to histhere is no doubt that it is open to the Central Government under S. 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under S. 3. The High Court has found that no such order under S. 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pensunless there is an order of the Central Government to that effect published in the official gazette. We, therefore, agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January - June 1957 even after October 1, 1957. | 0 | 4,141 | 775 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the quotas for the partners were to take effect only after the date of approval. If the division of quota has to be recognised by the Chief Controller on production of evidence required by Instruction 72 and this division has to be in accordance with the agreement between the partners of a dissolved firm, the approval must relate back to the date of agreement, for it is the agreement that is being recognised by the Chief Controller. In such a case the fact that the Chief Controller says that in future the quota would be divided, only means that the original quota of the undissolved firm would from the date of the agreement of dissolution be divided between partners as provided thereunder.11. Further we should like to make it clear that quotas should not be confused with licences. Quotas are merely for the purpose of informing the licensing authority that a particular person has been recognised as an established importer for import of certain things. Thereafter it is for the licensing authority to issue a licence to the quota holder in accordance with the licensing policy for the half year with which the licence deals. For example, if in a particular half year there is an order of the Central Government prohibiting the import of certain goods which are within the quota rights, the licensing authority would be entitled to refuse the issue of licence for import of such goods whose import has been banned by the Central Government under the Act by notified order. Thus the approval of the Chief Controller under instruction 71 is a mere recognition of the division made by the partners of dissolved firm by agreement between themselves and in that view the recognition must clearly relate back to the date of the agreement. Further when the Chief Controller says in his letter that in future the division would be recognised in a certain ratio based on the agreement it only means that the Chief Controller has approved of the division made by the parties and such approval then must relate back to the date of the agreement between the parties. We, therefore, hold that the view taken by the Madras High Court that the approval by the Chief Controller relates back to the date of agreement is correct.12. It was next urged that the application when it was made to the Joint Chief Controller was not complete inasmuch as it did not mention what quota the particular partner had. That is undoubtedly so for the applications in the present cases stated that the firm had been dissolved and application had been made to the Chief Controller for division of the quota of the original firm between the partners according to the agreement between them. To that extent the application was defective. It is pointed out that under Instruction 13 application for licence has to be made before a certain date and has to be complete in all respects. It was further urged that it is always open to the Joint Chief Controller to reject an application which is defective and is thus incomplete. Assuming that is so, one should have expected such a defective application being dismissed immediately after the last date for making the application had expired and the Joint Chief Controller should have given that as the reason for the rejection of the application for licence. But this was not done in the present cases and the reason for rejection of the application was not that it was not complete when made. Further it appears that it is not unusual for licences to be granted after the import period is over. It is also not denied that it was open to the Chief Controller in his discretion to say that the division of quota rights would be recognised from the date of the agreement even though the approval came must later. If that is so, it would mean that the applicant for division of quota would be entirely at the mercy of the Chief Controller because there is nothing in the Red Book to show under what circumstances the Chief Controller can grant recognition from the date of the agreement even though the approval comes much later. On the whole, therefore, we are of opinion that the view taken by the Madras High Court is correct as the grant of approval in accordance with the agreement is obligatory on the Chief Controller if the evidence required under Instruction 72 has been produced to his satisfaction.13. The last point urged was that subsequent to October 1957, Government of India changed its policy with respect to import of fountain pens with which some of the present appeals are concerned. This it was urged amounted to a ban on the import of fountain pens and it would not be open to the Joint Chief Controller to issue any licence for any period, be it January - June 1957, after the import of fountain pens had been banned from October 1957. Now there is no doubt that it is open to the Central Government under S. 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under S. 3. The High Court has found that no such order under S. 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pensunless there is an order of the Central Government to that effect published in the official gazette. We, therefore, agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January - June 1957 even after October 1, 1957.
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### Explanation:
We have already pointed out that on a proper interpretation of instruction 71, there is no doubt that the Chief Controller is bound to divide the quota of a firm consisting of partners which has been dissolved in accordance with the provisions of the agreement between the partners provided the necessary evidence has been produced before him, as required by instruction 72 in that behalf. Such being the nature of the proceeding before the Chief Controller it follows that when he gives approval to the division of the quota between the partners of a dissolved firm in accordance with the agreement between them, the approval must take effect from the date of the agreement between the partners. It might have been a different matter if the Chief Controller had the power to refuse division of the quota rights under these instructions; but he has no such power and must divide the quota in accordance with the agreement if he is satisfied as to the dissolution on the evidence produced in accordance with instruction 72. If such approval by the Chief Controller were not to date back to the date of agreement it would mean that the partners who were otherwise entitled to approval under instructions 71 and 72 might lose the advantage that they would have before the licensing authority by delay in the approval by the Chief Controller. In this connection our attention was drawn to the opening words in instruction 71 which provided that "the reconstituted firm will not be entitled to the quotas of the original firm until the transfer of the quota rights in their favour has been approved by the Chief Controller." It is true that these words make it necessary that there should be approval of the Chief Controller before a partner of a dissolved firm can say that he holds a quota. But these words do not mean that such approval will not date back to the date of agreement dividing the quota rights for the Chief Controller, as already indicated, has to divide the quota rights once he is satisfied as to dissolution on the production of evidence mentioned in instruction 72.In such circumstances it would in our opinion be fair to hold that the Chief Controllers approval dates back to the date of agreement so that such persons may not suffer on account of the delay in the Chief Controllers office in the matter of accordingthe approval of the Chief Controller under instruction 71 is a mere recognition of the division made by the partners of dissolved firm by agreement between themselves and in that view the recognition must clearly relate back to the date of the agreement. Further when the Chief Controller says in his letter that in future the division would be recognised in a certain ratio based on the agreement it only means that the Chief Controller has approved of the division made by the parties and such approval then must relate back to the date of the agreement between the parties. We, therefore, hold that the view taken by the Madras High Court that the approval by the Chief Controller relates back to the date of agreement isthe whole, therefore, we are of opinion that the view taken by the Madras High Court is correct as the grant of approval in accordance with the agreement is obligatory on the Chief Controller if the evidence required under Instruction 72 has been produced to histhere is no doubt that it is open to the Central Government under S. 3 to prohibit the import of any article but that can only be done by an order published in the official gazette by the Central Government under S. 3. The High Court has found that no such order under S. 3 of the Act has been published. Nor has any such order by the Central Government been brought to our notice. All that has been said is that in the declaration of policy as to import, the word "nil" appears against fountain pens. That necessarily does not amount to prohibition of import of fountain pensunless there is an order of the Central Government to that effect published in the official gazette. We, therefore, agree with the High Court that unless such an order is produced it would be open to the licensing authority to issue a licence for the period of January - June 1957 even after October 1, 1957.
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ORIENTAL INSURANCE COMPANY LIMITED Vs. M/S NARBHERAM POWER AND STEEL PVT LTD | stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came to hold:-?53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration. The thrust of the matter is whether the insurer has disputed or not accepted the liability under or in respect of the policy. The rejection of the claim of the respondent made vide letter dated 26.12.2014 ascribes the following reasons:-?1. Alleged loss of imported coal is clearly an inventory shortage.2. There was no actual loss of stock in process.3. The damage to the sponge iron is due to inherent vice.4. The loss towards building/sheds etc. are exaggerated to cover insured maintenance.5. As there is no material damage thus business interruption loss does not triggered.?26. The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy. On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit. | 1[ds]It is our obligation to mention here that though the respondent has placed reliance upon the said authority, yet the same does not assist him. On the contrary, it dispels the perception of ambiguity in Part II and Part III of the arbitration clause as perceived by the High Court. That apart, it throws light on the issue of repudiation.20. We may presently refer to the decision of the Madras High Court in M/s. Jumbo Bags Ltd. (supra). In the said case, learned Chief Justice was interpreting Clause 13 of the policy conditions. Referring to The Vulcan Insurance Co. Ltd. (supra), he has held thus:-?The dispute which is not referable to arbitration, being not covered by the clause cannot be over the subject matter of arbitration, and the remedy of the insured in this case is only to institute a suit.?And again :-?I am of the view that the remedy of arbitration is not available to the petitioner herein in view of the arbitration clause specifically excluding the mode of adjudication of disputes by arbitration, where a claim is repudiated in toto. The remedy would thus only be of a civil suit in accordance with law.?We concur with the said view.21. In Essar Steel India Limited (supra), the learned Single Judge of the Bombay High Court was dealing with a situation where the insurer had taken the stand that the policy was void ab initio. Repelling the said stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came toThe Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration.The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy.On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit. | 1 | 4,990 | 1,273 | ### 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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stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came to hold:-?53. The Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration. The thrust of the matter is whether the insurer has disputed or not accepted the liability under or in respect of the policy. The rejection of the claim of the respondent made vide letter dated 26.12.2014 ascribes the following reasons:-?1. Alleged loss of imported coal is clearly an inventory shortage.2. There was no actual loss of stock in process.3. The damage to the sponge iron is due to inherent vice.4. The loss towards building/sheds etc. are exaggerated to cover insured maintenance.5. As there is no material damage thus business interruption loss does not triggered.?26. The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy. On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit.
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### Explanation:
suit.?And again :-?I am of the view that the remedy of arbitration is not available to the petitioner herein in view of the arbitration clause specifically excluding the mode of adjudication of disputes by arbitration, where a claim is repudiated in toto. The remedy would thus only be of a civil suit in accordance with law.?We concur with the said view.21. In Essar Steel India Limited (supra), the learned Single Judge of the Bombay High Court was dealing with a situation where the insurer had taken the stand that the policy was void ab initio. Repelling the said stand, the learned Single Judge held that the disputes could be referred to arbitration since the plea advanced by the owner could be decided by the arbitrator. We do not intend to dwell upon the correctness of the said decision as the issue involved in the present case is quite different.22. In A. Ayyasamy (supra), a two-Judge Bench was concerned with the issue as to whether the plea of fraud can be adequately taken care of by the arbitrator. Sikri. J., analyzing the facts, opined:-?28. We, therefore, are of the opinion that the allegations of purported fraud were not so serious which cannot be taken care of by the arbitrator. The courts below, therefore, fell in error in rejecting the application of the appellant under Section 8 of the Act. Reversing these judgments, we allow these appeals and as a consequence, application filed by the appellant under Section 8 in the suit is allowed thereby relegating the parties to the arbitration.?Chandrachud J., in his concurring opinion, after referring to many an authority and literature in the field of arbitration, came toThe Arbitration and Conciliation Act, 1996, should in my view be interpreted so as to bring in line the principles underlying its interpretation in a manner that is consistent with prevailing approaches in the common law world. Jurisprudence in India must evolve towards strengthening the institutional efficacy of arbitration. Deference to a forum chosen by parties as a complete remedy for resolving all their claims is but part of that evolution. Minimising the intervention of courts is again a recognition of the same principle.?He has further held that the mere allegation of fraud in the factual scenario was not sufficient to detract the parties from the obligation to submit their disputes to arbitration keeping in view the letter and spirit of the 1996 Act. The decision, in our considered view, is not applicable to the case at hand.23. Though the learned counsel for the respondent has referred to the case of Chloro Controls India Private Limited (supra), yet the same need not be analyzed as it is not an authority remotely relevant for deciding the lis in the present case.24. It does not need special emphasis that an arbitration clause is required to be strictly construed. Any expression in the clause must unequivocally express the intent of arbitration. It can also lay the postulate in which situations the arbitration clause cannot be given effect to. If a clause stipulates that under certain circumstances there can be no arbitration, and they are demonstrably clear then the controversy pertaining to the appointment of arbitrator has to be put to rest.25. In the instant case, Clause 13 categorically lays the postulate that if the insurer has disputed or not accepted the liability, no difference or dispute shall be referred to arbitration.The aforesaid communication, submits the learned senior counsel for the respondent, does not amount to denial of liability under or in respect of the policy.On a reading of the communication, we think, the disputation squarely comes within Part II of Clause 13. The said Part of the Clause clearly spells out that the parties have agreed and understood that no differences and disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The communication ascribes reasons for not accepting the claim at all. It is nothing else but denial of liability by the insurer in toto. It is not a disputation pertaining to quantum. In the present case, we are not concerned with regard to whether the policy was void or not as the same was not raised by the insurer. The insurance-company has, on facts, repudiated the claim by denying to accept the liability on the basis of the aforesaid reasons. No inference can be drawn that there is some kind of dispute with regard to quantification. It is a denial to indemnify the loss as claimed by the respondent. Such a situation, according to us, falls on all fours within the concept of denial of disputes and non-acceptance of liability. It is not one of the arbitration clauses which can be interpreted in a way that denial of a claim would itself amount to dispute and, therefore, it has to be referred to arbitration. The parties are bound by the terms and conditions agreed under the policy and the arbitration clause contained in it. It is not a case where mere allegation of fraud is leaned upon to avoid the arbitration. It is not a situation where a stand is taken that certain claims pertain to excepted matters and are, hence, not arbitrable. The language used in the second part is absolutely categorical and unequivocal inasmuch as it stipulates that it is clearly agreed and understood that no difference or disputes shall be referable to arbitration if the company has disputed or not accepted the liability. The High Court has fallen into grave error by expressing the opinion that there is incongruity between Part II and Part III. The said analysis runs counter to the principles laid down in the three-Judge Bench decision in The Vulcan Insurance Co. Ltd (supra). Therefore, the only remedy which the respondent can take recourse to is to institute a civil suit for mitigation of the grievances. If a civil suit is filed within two months hence, the benefit of Section 14 of the Limitation Act, 1963 will enure to its benefit.
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BRAHMA SINGH AND OTHERS Vs. UNION OF INDIA AND OTHERS | also apply to the employees of the Central Authority. The Central Authority framed the Supreme Court Legal Services Committee Regulations, 1996 and Regulations 3(1) and 3(2) thereof read as follows; 3. General effect of vesting. – On and from the date of commencement of these regulations, - (1)All the assets, liabilities, rights, title and interest of the erstwhile Supreme Court Legal Aid Committee stand transferred to, and vest in, Supreme Court Legal Services Committee; 3(2) The staff, who have been serving under the erstwhile Supreme Court Legal Aid Committee shall be deemed to be working for the Supreme Court Legal Services Committee; xxx xxx xxx 4. The Supreme Court Legal Services Committee Rules, 2000 were framed by the Central Government in consultation with the Chief Justice of India and came into effect on 03.07.2000. Rule 6 is relevant for our purpose and reads as follows: 6. The conditions of service and the salary and allowances payable to the officers and employees of the Supreme Court Legal Services Committee under sub-section (6) of section 3A.-(1) The officers and other employees of the Supreme Court Legal Services Committee shall be entitled to draw pay and allowances in the scale of pay indicated against each post in the Schedule to these rules or at par with the Central Government employees holding equivalent posts. (2)In all matters like age of retirement, pay and allowances, benefits and entitlements and disciplinary matters, the officers and employees of the Supreme Court Legal Services Committee shall be governed by the Central Government rules as are applicable to persons holding equivalent posts. (3)The officers and other employees of the Supreme Court Legal Services Committee shall be entitled to such other facilities and benefits as may be notified by the Central Government from time to time. Explanation. – The words benefits, allowances, entitlements, facilities occurring in these rules shall be deemed to include, the entitlement to gratuity, provident fund, housing, medical benefits, pension, group insurance, and all other benefits as are available to employees of the Central Government holding equivalent posts. Sub-rule (2) of Rule 6 of the Supreme Court Legal Services Committee Rules clearly states that in all matters like age of retirement, pay and allowances and benefits on retirement the officers and employees of the Supreme Court Legal Services Committee shall be governed by the Central Government rules. 5. Earlier, the petitioners had approached this Court by filing Writ Petition (Civil) No. 267 of 2008 whereby they had claimed that they were entitled to pay and allowances and other benefits under Rule 6 quoted hereinabove. That writ petition was allowed and the respondents were directed to give full benefit of Rule 6 of the Supreme Court Legal Services Committee Rules by fixing the pay and allowances of the petitioners and other similarly situated employees in the pay scales specified in the Schedule appended to the Rules or at par with the Central Government employees holding equivalent posts. They were also directed to pay arrears from the date of promulgation of the Rules i.e. 03.07.2000. 6. The Union of India has raised a two-fold submission. It is first submitted that the service of the petitioners rendered prior to 03.07.2000 cannot be taken into consideration while quantifying the qualifying service or determining their retiral benefits. It is secondly contended that this plea could have been taken in the earlier writ petition and, in fact, such a plea was raised but finally the Court did not grant this relief and, therefore, they cannot file the second petition. 7. From the facts narrated above, it is apparent that the Supreme Court Legal Aid Committee was created under administrative instructions of the Government. Thereafter, the Legal Services Authorities Act, 1987 came into force. The services of the officers and employees were governed by Rule 3A and after 2000, they are governed by the Supreme Court Legal Services Committee Regulations, 2000. They have been rendering service uninterruptedly as employees of the Supreme Court Legal Services Committee and no distinction can be made between the service prior to 03.07.2000 and the service rendered thereafter. The petitioners have been regular employees of the Supreme Court Legal Services Committee and their entire service must be counted for determining their pension and other retiral benefits. This entire service is to be treated as their qualifying service in accordance with the Rules. 8. As far as the second submission made on behalf of the Union of India is concerned, we have carefully gone through the earlier order and the writ petition. Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hyper-technical ground. In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others AIR 1962 SC 1334 as follows: 12. …The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court. Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 in relation to Order II Rule 2 held as follows: 23. …By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit… | 1[ds]7. From the facts narrated above, it is apparent that the Supreme Court Legal Aid Committee was created under administrative instructions of the Government. Thereafter, the Legal Services Authorities Act, 1987 came into force. The services of the officers and employees were governed by Rule 3A and after 2000, they are governed by the Supreme Court Legal Services Committee Regulations, 2000. They have been rendering service uninterruptedly as employees of the Supreme Court Legal Services Committee and no distinction can be made between the service prior to 03.07.2000 and the service rendered thereafter. The petitioners have been regular employees of the Supreme Court Legal Services Committee and their entire service must be counted for determining their pension and other retiral benefits. This entire service is to be treated as their qualifying service in accordance with the Rules8. As far as the second submission made on behalf of the Union of India is concerned, we have carefully gone through the earlier order and the writ petition. Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hyper-technical groundIn relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others AIR 1962 SC 1334 as follows:12. …The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High CourtPlacing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of GujaratAIR 1965 SC 1153 in relation to Order II Rule 2 held as follows:23. …By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit… | 1 | 1,677 | 438 | ### Instruction:
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also apply to the employees of the Central Authority. The Central Authority framed the Supreme Court Legal Services Committee Regulations, 1996 and Regulations 3(1) and 3(2) thereof read as follows; 3. General effect of vesting. – On and from the date of commencement of these regulations, - (1)All the assets, liabilities, rights, title and interest of the erstwhile Supreme Court Legal Aid Committee stand transferred to, and vest in, Supreme Court Legal Services Committee; 3(2) The staff, who have been serving under the erstwhile Supreme Court Legal Aid Committee shall be deemed to be working for the Supreme Court Legal Services Committee; xxx xxx xxx 4. The Supreme Court Legal Services Committee Rules, 2000 were framed by the Central Government in consultation with the Chief Justice of India and came into effect on 03.07.2000. Rule 6 is relevant for our purpose and reads as follows: 6. The conditions of service and the salary and allowances payable to the officers and employees of the Supreme Court Legal Services Committee under sub-section (6) of section 3A.-(1) The officers and other employees of the Supreme Court Legal Services Committee shall be entitled to draw pay and allowances in the scale of pay indicated against each post in the Schedule to these rules or at par with the Central Government employees holding equivalent posts. (2)In all matters like age of retirement, pay and allowances, benefits and entitlements and disciplinary matters, the officers and employees of the Supreme Court Legal Services Committee shall be governed by the Central Government rules as are applicable to persons holding equivalent posts. (3)The officers and other employees of the Supreme Court Legal Services Committee shall be entitled to such other facilities and benefits as may be notified by the Central Government from time to time. Explanation. – The words benefits, allowances, entitlements, facilities occurring in these rules shall be deemed to include, the entitlement to gratuity, provident fund, housing, medical benefits, pension, group insurance, and all other benefits as are available to employees of the Central Government holding equivalent posts. Sub-rule (2) of Rule 6 of the Supreme Court Legal Services Committee Rules clearly states that in all matters like age of retirement, pay and allowances and benefits on retirement the officers and employees of the Supreme Court Legal Services Committee shall be governed by the Central Government rules. 5. Earlier, the petitioners had approached this Court by filing Writ Petition (Civil) No. 267 of 2008 whereby they had claimed that they were entitled to pay and allowances and other benefits under Rule 6 quoted hereinabove. That writ petition was allowed and the respondents were directed to give full benefit of Rule 6 of the Supreme Court Legal Services Committee Rules by fixing the pay and allowances of the petitioners and other similarly situated employees in the pay scales specified in the Schedule appended to the Rules or at par with the Central Government employees holding equivalent posts. They were also directed to pay arrears from the date of promulgation of the Rules i.e. 03.07.2000. 6. The Union of India has raised a two-fold submission. It is first submitted that the service of the petitioners rendered prior to 03.07.2000 cannot be taken into consideration while quantifying the qualifying service or determining their retiral benefits. It is secondly contended that this plea could have been taken in the earlier writ petition and, in fact, such a plea was raised but finally the Court did not grant this relief and, therefore, they cannot file the second petition. 7. From the facts narrated above, it is apparent that the Supreme Court Legal Aid Committee was created under administrative instructions of the Government. Thereafter, the Legal Services Authorities Act, 1987 came into force. The services of the officers and employees were governed by Rule 3A and after 2000, they are governed by the Supreme Court Legal Services Committee Regulations, 2000. They have been rendering service uninterruptedly as employees of the Supreme Court Legal Services Committee and no distinction can be made between the service prior to 03.07.2000 and the service rendered thereafter. The petitioners have been regular employees of the Supreme Court Legal Services Committee and their entire service must be counted for determining their pension and other retiral benefits. This entire service is to be treated as their qualifying service in accordance with the Rules. 8. As far as the second submission made on behalf of the Union of India is concerned, we have carefully gone through the earlier order and the writ petition. Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hyper-technical ground. In relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others AIR 1962 SC 1334 as follows: 12. …The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High Court. Placing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of Gujarat AIR 1965 SC 1153 in relation to Order II Rule 2 held as follows: 23. …By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit…
### Response:
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### Explanation:
7. From the facts narrated above, it is apparent that the Supreme Court Legal Aid Committee was created under administrative instructions of the Government. Thereafter, the Legal Services Authorities Act, 1987 came into force. The services of the officers and employees were governed by Rule 3A and after 2000, they are governed by the Supreme Court Legal Services Committee Regulations, 2000. They have been rendering service uninterruptedly as employees of the Supreme Court Legal Services Committee and no distinction can be made between the service prior to 03.07.2000 and the service rendered thereafter. The petitioners have been regular employees of the Supreme Court Legal Services Committee and their entire service must be counted for determining their pension and other retiral benefits. This entire service is to be treated as their qualifying service in accordance with the Rules8. As far as the second submission made on behalf of the Union of India is concerned, we have carefully gone through the earlier order and the writ petition. Though it is correct that in the writ petition there was a general claim to grant all the benefits under Rule 6 which would include retiral benefits but it appears that the Court did not go into the same. There is no rejection of the plea and as such we are of the considered view that this petition is maintainable and cannot be rejected on this hyper-technical groundIn relation to applicability of Order II Rule 2 of the Civil Procedure Code, 1908 this Court has held in Devendra Pratap Narain Rai Sharma v. State of Uttar Pradesh and Others AIR 1962 SC 1334 as follows:12. …The bar of O.2 R. 2 of the Civil Procedure Code on which the High Court apparently relied may not apply to a petition for a high prerogative writ under Art. 226 of the Constitution, but the High Court having disallowed the claim of the appellant for salary prior to the date of the suit, we do not think that we would be justified in interfering with the exercise of its discretion by the High CourtPlacing reliance on the case of Devendra Pratap Narain Rai Sharma (supra), this Court in Gulabchand Chhotalal Parikh v. State of GujaratAIR 1965 SC 1153 in relation to Order II Rule 2 held as follows:23. …By its very language, these provisions do not apply to the contents of a writ petition and consequently do not apply to the contents of a subsequent suit…
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M/s. Sundaram Finance Limited Vs. Regional Transport Officer and Another | 1. These appeals are directed against the judgment and order dated January 27, 1975 of a Division Bench of the High Court of Kerala dismissing the three writ petitions filed by the appellant 2. M/s Sundaram Finance Ltd. is a company carrying on business of financing of automobiles on hire-purchase basis with its head office at Madras. The company had three vehicles which were covered by hire-purchase agreements executed by it with the concerned bus operators. The persons who were actually operating the vehicles did not pay the passengers and goods tax. Since the vehicles were subsequently seized by the appellant and got registered in its name, the Regional Transport Authority issued notice of demand to the appellant for the recovery of the tax arrears. The appellant challenged the validity of the recovery proceedings by filing writ petitions in the High Court mainly on the ground that the appellant-company was not an Operator and had no permit in its favour at the relevant time when the tax was collected; hence, it could not be made liable to pay the taxes in dispute. The Division Bench of the High Court considered the matter in detail and dismissed the petitions in view of the definition of Operator in Section 2(b) of the Kerala Motor Vehicles (Taxation of Passengers and Goods) Act, 1963 (hereinafter referred to as the Act). The Court held that the appellant being the owner of the vehicle and being also in control and possession of the same, was included in the definition, irrespective of the fact it was a permit-holder or not. In this view the Division Bench dismissed the writ petitions upholding the recovery of the taxes from the appellant 3. After hearing learned counsel for the parties at length, we do not find any error or legal infirmity in the impugned judgment of the High Curt. Under Section 3 of the Act, the tax is levied on all passengers, luggage and goods carried by stage carriages and on all goods transported by goods vehicles at the rates specified therein. Under sub-section (3) of the said section, Operator is liable to pay the tax. Thus, though the tax is on the transport of passengers, luggage and goods, the tax is collected from an Operator and under the law he is liable to pay the taxes. Operator is defined by Section 2(b) of the Act as amended by Act 4 of 1973 as the owner or the person having possession or control of the vehicle and includes any person whose name is entered in the permit as the holder thereof. This definition is wide enough to include the appellant-company who was owner of the vehicles and on the date of the notice of demand it had, further, possession and control of the vehicles. In the circumstances, in our opinion, the High Court has rightly held that the appellant is liable to pay the taxes. Learned counsel placed reliance on two Division Bench decisions of Madras High Court, namely, Tehsildar, South West Madras v. Lalith Finance Corpn. [(1986) 99 Mad LW 442 : 1986 (2) MLJ 49] and also Tehsildar, South West Madras v. Jang Bahadur Singh Jain and Company [(1985) 98 Mad LW 808]. We have gone through the judgments carefully but with great respect to the learned Judges we are unable to agree with the view taken by them. We need not discuss the matter in detail as similar provisions contained in Bihar Act have been considered in detail by this Court in Jagir Singh v. State of Bihar [ 1976 (2) SCC 942 : 1976 SCC(Tax) 204 : 1976 (2) SCR 809 ]. In this case the Court has upheld the liability of the owner to pay the tax although he was not an operator, in view of the extended meaning of the side term4. Hence, we are of the opinion that the High Court has rightly dismissed the petitions and upheld the liability of the appellant for paying the taxes. | 0[ds]3. After hearing learned counsel for the parties at length, we do not find any error or legal infirmity in the impugned judgment of the High Curt. Under Section 3 of the Act, the tax is levied on all passengers, luggage and goods carried by stage carriages and on all goods transported by goods vehicles at the rates specified therein. Under(3) of the said section, Operator is liable to pay the tax. Thus, though the tax is on the transport of passengers, luggage and goods, the tax is collected from an Operator and under the law he is liable to pay the taxes. Operator is defined by Section 2(b) of the Act as amended by Act 4 of 1973 as the owner or the person having possession or control of the vehicle and includes any person whose name is entered in the permit as the holder thereof. This definition is wide enough to include thewho was owner of the vehicles and on the date of the notice of demand it had, further, possession and control of the vehicles. In the circumstances, in our opinion, the High Court has rightly held that the appellant is liable to pay thehave gone through the judgments carefully but with great respect to the learned Judges we are unable to agree with the view taken by them. We need not discuss the matter in detail as similar provisions contained in Bihar Act have been considered in detail by this Court in Jagir Singh v. State of Bihar [ 1976 (2) SCC 942 : 1976 SCC(Tax) 204 : 1976 (2) SCR 809 ]. In this case the Court has upheld the liability of the owner to pay the tax although he was not an operator, in view of the extended meaning of the sideHence, we are of the opinion that the High Court has rightly dismissed the petitions and upheld the liability of the appellant for paying the taxes. | 0 | 740 | 363 | ### Instruction:
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1. These appeals are directed against the judgment and order dated January 27, 1975 of a Division Bench of the High Court of Kerala dismissing the three writ petitions filed by the appellant 2. M/s Sundaram Finance Ltd. is a company carrying on business of financing of automobiles on hire-purchase basis with its head office at Madras. The company had three vehicles which were covered by hire-purchase agreements executed by it with the concerned bus operators. The persons who were actually operating the vehicles did not pay the passengers and goods tax. Since the vehicles were subsequently seized by the appellant and got registered in its name, the Regional Transport Authority issued notice of demand to the appellant for the recovery of the tax arrears. The appellant challenged the validity of the recovery proceedings by filing writ petitions in the High Court mainly on the ground that the appellant-company was not an Operator and had no permit in its favour at the relevant time when the tax was collected; hence, it could not be made liable to pay the taxes in dispute. The Division Bench of the High Court considered the matter in detail and dismissed the petitions in view of the definition of Operator in Section 2(b) of the Kerala Motor Vehicles (Taxation of Passengers and Goods) Act, 1963 (hereinafter referred to as the Act). The Court held that the appellant being the owner of the vehicle and being also in control and possession of the same, was included in the definition, irrespective of the fact it was a permit-holder or not. In this view the Division Bench dismissed the writ petitions upholding the recovery of the taxes from the appellant 3. After hearing learned counsel for the parties at length, we do not find any error or legal infirmity in the impugned judgment of the High Curt. Under Section 3 of the Act, the tax is levied on all passengers, luggage and goods carried by stage carriages and on all goods transported by goods vehicles at the rates specified therein. Under sub-section (3) of the said section, Operator is liable to pay the tax. Thus, though the tax is on the transport of passengers, luggage and goods, the tax is collected from an Operator and under the law he is liable to pay the taxes. Operator is defined by Section 2(b) of the Act as amended by Act 4 of 1973 as the owner or the person having possession or control of the vehicle and includes any person whose name is entered in the permit as the holder thereof. This definition is wide enough to include the appellant-company who was owner of the vehicles and on the date of the notice of demand it had, further, possession and control of the vehicles. In the circumstances, in our opinion, the High Court has rightly held that the appellant is liable to pay the taxes. Learned counsel placed reliance on two Division Bench decisions of Madras High Court, namely, Tehsildar, South West Madras v. Lalith Finance Corpn. [(1986) 99 Mad LW 442 : 1986 (2) MLJ 49] and also Tehsildar, South West Madras v. Jang Bahadur Singh Jain and Company [(1985) 98 Mad LW 808]. We have gone through the judgments carefully but with great respect to the learned Judges we are unable to agree with the view taken by them. We need not discuss the matter in detail as similar provisions contained in Bihar Act have been considered in detail by this Court in Jagir Singh v. State of Bihar [ 1976 (2) SCC 942 : 1976 SCC(Tax) 204 : 1976 (2) SCR 809 ]. In this case the Court has upheld the liability of the owner to pay the tax although he was not an operator, in view of the extended meaning of the side term4. Hence, we are of the opinion that the High Court has rightly dismissed the petitions and upheld the liability of the appellant for paying the taxes.
### Response:
0
### Explanation:
3. After hearing learned counsel for the parties at length, we do not find any error or legal infirmity in the impugned judgment of the High Curt. Under Section 3 of the Act, the tax is levied on all passengers, luggage and goods carried by stage carriages and on all goods transported by goods vehicles at the rates specified therein. Under(3) of the said section, Operator is liable to pay the tax. Thus, though the tax is on the transport of passengers, luggage and goods, the tax is collected from an Operator and under the law he is liable to pay the taxes. Operator is defined by Section 2(b) of the Act as amended by Act 4 of 1973 as the owner or the person having possession or control of the vehicle and includes any person whose name is entered in the permit as the holder thereof. This definition is wide enough to include thewho was owner of the vehicles and on the date of the notice of demand it had, further, possession and control of the vehicles. In the circumstances, in our opinion, the High Court has rightly held that the appellant is liable to pay thehave gone through the judgments carefully but with great respect to the learned Judges we are unable to agree with the view taken by them. We need not discuss the matter in detail as similar provisions contained in Bihar Act have been considered in detail by this Court in Jagir Singh v. State of Bihar [ 1976 (2) SCC 942 : 1976 SCC(Tax) 204 : 1976 (2) SCR 809 ]. In this case the Court has upheld the liability of the owner to pay the tax although he was not an operator, in view of the extended meaning of the sideHence, we are of the opinion that the High Court has rightly dismissed the petitions and upheld the liability of the appellant for paying the taxes.
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Messrs East India Pharmaceutical Works Limited Vs. Commissioner of Income Tax. West Bengal | entire profits had been pumped into the over-draft account, whether such profits were more than the tax amount paid for the relevant year and all other germane factors. But when the assessee never advanced the contention either before the Tribunal or before the High Court does not bring within its seep the contention as is advanced by Mr. Bhattacharyya. 3. Learned counsel in this Court, it would not be appropriate for this Court to look into the additional papers produced by the assessee for entertaining the contention and answering the same. It is true that the Calcutta High Court in Woolcombers case (supra) came to the conclusion that where profits were sufficient to meet the advance tax liability and profits were deposited into the overdraft account of the assessee then it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of the business. But to raise the presumption in that particular case there were sufficient materials and the assessee had urged the contention before the High Court. The afo resaid decision has been followed in the case of Reckitt (supra) where without any further discussion the Woolcombers case has been followed. But it may be noticed that the question posed in Reckitts case was directly to the effect as to where the entire trading receipts deposited by the assessee in the overdraft account and the tax was paid out of the overdraft account whether the interest paid the assessee for payment of tax out of the overdraft account is an allowable deduction. In Indian Explosives Ltd. case (supra) the aforesaid two decisions of the Calcutta High Court had been followed and the question that had been posed was to the effect whether the interest on an overdraft account paid towards the amount drawn for discharging the tax liability could be an allowable expenditure and, therefore, the High Court answered in favour of the assessee and against the Revenue. It may be noticed that in the aforesaid case the Court did not express any opinion on the question whether the interest paid on money borrowed for payment of tax was allowable as business expenditure. To the same effect is the decision of the Calcutta High Court in Alkali Chemical Corporation of India Ltd. (supra). It ma y be noticed that in the present case even before the Tribunal what was argued on behalf of the assessee is that the amount of interest paid to the Bank represents and expenditure laid out or expended wholly and exclusively for the purpose of business. In furtherance of this contention it has also been urged before the Tribunal that non-payment of the taxes which were to the tune of lakhs would have entirely crippled the business and even the very existence of the company would have been thr eatened and, therefore, the expenditure thus incurred should have been held to be an expenditure for carrying on the business and thus allowable under Section 37(1) of the Act which contention, however, was rejected by the Tribunal relying upon the decision of this court in Padmawati (supra). In Padmawatis case this court held that meeting the liability of income tax was a personal one and the dominant purpose for paying annuity deposit was not to earn income but to meet the statutory liability of making the deposit. It was further held that the expenditure thus made was not wholly and exclusively for the purpose of earning income and consequently the interest which was paid to discharge the aforesaid tax liability was not allowable under Section 57(iii) of the Income Tax Act, 1961. In Madhav Prasads case (supra) this Court also came to the conclusion that tin order to enable an assessee to claim deduction in respect of the interest on borrowed capital under Section 10(2) (iii) of the Income Tax Act, 1922 three conditions are required to be satisfied; namely,(1) That money must have been borrowed by the assessee; (2) that it must have been borrowed for the purpose of business; and (3) that the assessee must have paid interest on the said amount and claimed it as a deduction. 4. It was further held that the payment made by the assessee by drawing a cheque on the overdraft account was a borrowing which was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on business and consequently said expenditure could not be regarded as business expenditure. In the aforesaid case the overdraft in question has been made by the assessee to discharge her personal obligation in pursuance to a promise made by her to donate a sum of Rs.10 lakhs for starting an Engineering College and the question of payment of income-tax liability did not arise in that case. The case, therefore, is not of any direct assistance to the present case. But the principle laid down therein, namely, if capital is borrowed to meet the personal obligation of the business then the expenditure cannot be regarded as a business expenditure cannot be regarded as a business expenditure would apply. As has been already noticed in Padmawatis case (supra) this Court has affirmatively held that meeting the liability for income tax was a personal liability and such expenditure can never be held to be wholly and exclusively for the purpose of earning income. 5. In the aforesaid premises and in view of the question that arose out of the order of the Tribunal and which was referred by the Tribunal to the High Court for being answered given by the High Court. It may further be stated that even before the High Court the assessee has not taken any step to get the question referred in the light of the contention which were advanced in this Court by filing an application under Section 256(2) of the Act. | 0[ds]Having considered the rival submissions at the bar though we find considerable force in the arguments advanced by the learned counsel appearing for the appellant but in the facts and circumstances of the present case, on going through the order of the Tribunal as well as the question referred to by the Tribunal for being answered by the High Court and the arguments advanced before the Tribunal as well as in the High Court by the counsel appearing for the assessee, it is not possible for us to hold that any such contention, as was advanced before this court by the assessee had in fact been advanced either before the Tribunal or before the High Court. The question whether the presumption can be drawn that the taxes were paid out of the profits of the relevant year and not out of the over-draft account for the running of the business as was drawn in Woolcomberss case (supra) by the Calcutta High Court and was followed in 3 other cases of the same High Court, would essentially depend upon the fact as to whether the entire profits had been pumped into the over-draft account, whether such profits were more than the tax amount paid for the relevant year and all other germane factors. But when the assessee never advanced the contention either before the Tribunal or before the High Court does not bring within its seep the contention as is advanced by Mr.the aforesaid case the overdraft in question has been made by the assessee to discharge her personal obligation in pursuance to a promise made by her to donate a sum of Rs.10 lakhs for starting an Engineering College and the question of payment of income-tax liability did not arise in that case. The case, therefore, is not of any direct assistance to the present case. But the principle laid down therein, namely, if capital is borrowed to meet the personal obligation of the business then the expenditure cannot be regarded as a business expenditure cannot be regarded as a business expenditure would apply. As has been already noticed in Padmawatis case (supra) this Court has affirmatively held that meeting the liability for income tax was a personal liability and such expenditure can never be held to be wholly and exclusively for the purpose of earningthe aforesaid premises and in view of the question that arose out of the order of the Tribunal and which was referred by the Tribunal to the High Court for being answered given by the High Court. It may further be stated that even before the High Court the assessee has not taken any step to get the question referred in the light of the contention which were advanced in this Court by filing an application under Section 256(2) of the Act. | 0 | 2,850 | 496 | ### Instruction:
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entire profits had been pumped into the over-draft account, whether such profits were more than the tax amount paid for the relevant year and all other germane factors. But when the assessee never advanced the contention either before the Tribunal or before the High Court does not bring within its seep the contention as is advanced by Mr. Bhattacharyya. 3. Learned counsel in this Court, it would not be appropriate for this Court to look into the additional papers produced by the assessee for entertaining the contention and answering the same. It is true that the Calcutta High Court in Woolcombers case (supra) came to the conclusion that where profits were sufficient to meet the advance tax liability and profits were deposited into the overdraft account of the assessee then it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of the business. But to raise the presumption in that particular case there were sufficient materials and the assessee had urged the contention before the High Court. The afo resaid decision has been followed in the case of Reckitt (supra) where without any further discussion the Woolcombers case has been followed. But it may be noticed that the question posed in Reckitts case was directly to the effect as to where the entire trading receipts deposited by the assessee in the overdraft account and the tax was paid out of the overdraft account whether the interest paid the assessee for payment of tax out of the overdraft account is an allowable deduction. In Indian Explosives Ltd. case (supra) the aforesaid two decisions of the Calcutta High Court had been followed and the question that had been posed was to the effect whether the interest on an overdraft account paid towards the amount drawn for discharging the tax liability could be an allowable expenditure and, therefore, the High Court answered in favour of the assessee and against the Revenue. It may be noticed that in the aforesaid case the Court did not express any opinion on the question whether the interest paid on money borrowed for payment of tax was allowable as business expenditure. To the same effect is the decision of the Calcutta High Court in Alkali Chemical Corporation of India Ltd. (supra). It ma y be noticed that in the present case even before the Tribunal what was argued on behalf of the assessee is that the amount of interest paid to the Bank represents and expenditure laid out or expended wholly and exclusively for the purpose of business. In furtherance of this contention it has also been urged before the Tribunal that non-payment of the taxes which were to the tune of lakhs would have entirely crippled the business and even the very existence of the company would have been thr eatened and, therefore, the expenditure thus incurred should have been held to be an expenditure for carrying on the business and thus allowable under Section 37(1) of the Act which contention, however, was rejected by the Tribunal relying upon the decision of this court in Padmawati (supra). In Padmawatis case this court held that meeting the liability of income tax was a personal one and the dominant purpose for paying annuity deposit was not to earn income but to meet the statutory liability of making the deposit. It was further held that the expenditure thus made was not wholly and exclusively for the purpose of earning income and consequently the interest which was paid to discharge the aforesaid tax liability was not allowable under Section 57(iii) of the Income Tax Act, 1961. In Madhav Prasads case (supra) this Court also came to the conclusion that tin order to enable an assessee to claim deduction in respect of the interest on borrowed capital under Section 10(2) (iii) of the Income Tax Act, 1922 three conditions are required to be satisfied; namely,(1) That money must have been borrowed by the assessee; (2) that it must have been borrowed for the purpose of business; and (3) that the assessee must have paid interest on the said amount and claimed it as a deduction. 4. It was further held that the payment made by the assessee by drawing a cheque on the overdraft account was a borrowing which was made to meet her personal obligation and not the obligation of the business and as such expenditure incurred by the assessee by way of payment of interest thereon was not for carrying on business and consequently said expenditure could not be regarded as business expenditure. In the aforesaid case the overdraft in question has been made by the assessee to discharge her personal obligation in pursuance to a promise made by her to donate a sum of Rs.10 lakhs for starting an Engineering College and the question of payment of income-tax liability did not arise in that case. The case, therefore, is not of any direct assistance to the present case. But the principle laid down therein, namely, if capital is borrowed to meet the personal obligation of the business then the expenditure cannot be regarded as a business expenditure cannot be regarded as a business expenditure would apply. As has been already noticed in Padmawatis case (supra) this Court has affirmatively held that meeting the liability for income tax was a personal liability and such expenditure can never be held to be wholly and exclusively for the purpose of earning income. 5. In the aforesaid premises and in view of the question that arose out of the order of the Tribunal and which was referred by the Tribunal to the High Court for being answered given by the High Court. It may further be stated that even before the High Court the assessee has not taken any step to get the question referred in the light of the contention which were advanced in this Court by filing an application under Section 256(2) of the Act.
### Response:
0
### Explanation:
Having considered the rival submissions at the bar though we find considerable force in the arguments advanced by the learned counsel appearing for the appellant but in the facts and circumstances of the present case, on going through the order of the Tribunal as well as the question referred to by the Tribunal for being answered by the High Court and the arguments advanced before the Tribunal as well as in the High Court by the counsel appearing for the assessee, it is not possible for us to hold that any such contention, as was advanced before this court by the assessee had in fact been advanced either before the Tribunal or before the High Court. The question whether the presumption can be drawn that the taxes were paid out of the profits of the relevant year and not out of the over-draft account for the running of the business as was drawn in Woolcomberss case (supra) by the Calcutta High Court and was followed in 3 other cases of the same High Court, would essentially depend upon the fact as to whether the entire profits had been pumped into the over-draft account, whether such profits were more than the tax amount paid for the relevant year and all other germane factors. But when the assessee never advanced the contention either before the Tribunal or before the High Court does not bring within its seep the contention as is advanced by Mr.the aforesaid case the overdraft in question has been made by the assessee to discharge her personal obligation in pursuance to a promise made by her to donate a sum of Rs.10 lakhs for starting an Engineering College and the question of payment of income-tax liability did not arise in that case. The case, therefore, is not of any direct assistance to the present case. But the principle laid down therein, namely, if capital is borrowed to meet the personal obligation of the business then the expenditure cannot be regarded as a business expenditure cannot be regarded as a business expenditure would apply. As has been already noticed in Padmawatis case (supra) this Court has affirmatively held that meeting the liability for income tax was a personal liability and such expenditure can never be held to be wholly and exclusively for the purpose of earningthe aforesaid premises and in view of the question that arose out of the order of the Tribunal and which was referred by the Tribunal to the High Court for being answered given by the High Court. It may further be stated that even before the High Court the assessee has not taken any step to get the question referred in the light of the contention which were advanced in this Court by filing an application under Section 256(2) of the Act.
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K. Mohammad Ziauddin Sahib Vs. Kosha Abdul Munaf Saheb and Others | the business conducted by Dadamian Sahib & Sons. The first defendant has not produced any of the accounts relating to this business though he was summoned by the plaintiff to produce them. His contention is that this business is a separate business carried on by him in partnership with other and that, therefore, the plaintiff is not entitled to any interest in it. The Commissioner has dealt with this matter at pages 9 and 10 of his report. He says that the Bowringpet business cannot be said to be a business carried on by the suit partnership because the first defendant was carrying on the business in partnership with strangers who had nothing to do with this partnership. I do not think that a sufficient ground for negativing the plaintiffs contention. The suit partnership had been carrying on some business in partnership with persons who were not partners in the suit partnership. For instance the tobacco business is said to have carried on in Vasakattu with others who were not partners of Dadamian Sahib & Sons. This is admitted by the counsel for the first defendant. Therefore the mere fact that the first defendant has been doing the Bowringpet business in partnership with other will not show that it is not on behalf of the suit partnership. As has been pointed out by the Commissioner himself, the 1st defendant had utilised the funds of the suit partnership for conducting the Bowringpet business in petrol and kerosene. There is also a ledger page in the suit partnership accounts for the Bowringpet business as stated by the Commissioner. These clearly show that the Bowringpet business is also part of the suit partnership. The High Court has held that the 1st defendant must account for the business carried on by him in his own name as well as the business formally known as Dadamian Sahib & Sons. The Bowringpet business being admittedly one of the businesses carried on by 1st defendant in his own name though along with others, it is covered by the High Courts decree and the 1st defendant must account for his share of the profits of that business also.But the 1st defendant having failed to produce the account books of this Bowringpet business in spite of the plaintiffs notice given to him, interest on the amount utilised by the 1st defendant from the suit partnership must be charged in lieu of the profits. I think that the 1st defendant is suppressing the accounts of this business because this business yielded considerable profits. This business deals in petrol and kerosene. The plaintiff claims interest at 24 per cent. per annum but I think that this is excessive. I think that 12 per cent. per annum would be a reasonable rate of interest."The High Court dealt with this item thus :"The next item is a sum of Rs. 11, 608-0-9, representing the profits got by the Bowringpet business and interest thereon. Mr. Thyagarajan contended that a sum of Rs. 5, 500 had been drawn out by the 1st defendant from the suit partnership assets for becoming a partner in the Bowringpet business, and that the 1st defendant would be liable only for this Rs. 5, 500 with interest at 6 per cent. per annum from the date of drawing as the profits were not greater. Worked out on that basis, it will come to Rs. 8, 600 and odd. So relief can be claimed only regarding the balance of Rs. 3, 000 under this head. This was one of the items objected to before the Commissioner by the plaintiff."In our view, the High Courts approach is correct and the trial court had wrongly assumed that the fact that defendant No. 1 had entered into a partnership with a stranger after withdrawing certain amounts from the partnership must be held to be a part of the main business. We do not think there is any material to justify this conclusion. The appellants challenge thus fails.14. The next item refers to petrol leakage and betel nut. The High Court has dealt with these items in these words :"The next item is a sum of Rs. 4, 074-8-0 claimed as refund of family funds for purchase of Items 6, 7, 10 and 11. In view of our finding that items 7 and 10 were actually purchased for the family, and that an adjustment has been made regarding the advance for the purchase of the other two items this item disallowed. The next item is a sum of Rs. 2, 113-12-10 claimed by the plaintiff as allowance for petrol leakage. But, in those days, it appears that the bunk system of pump petrol had not come into vogue, and no leakage seems to have been allowed for petrol as it was supplied in leak-proof 2 gallons tins. The evidence shows this. We believe the evidence and we allow this item in favour of defendant 1. Next we come to Rs. 3, 400 claimed for betal nut wastage. Some wastage was inevitable in a trade in betel nut, but more than 5 per cent. is not justifiable in the absence of proof of actual wastage above that limit. So we allow Rs. 2, 500 under this head and disallow the rest."The criticism levelled by Shri Latifi that the accounts with regard to petrol leakage were not produced is, in our opinion, unacceptable for it is normally not practicable to keep account with respect to such petrol leakage. In regard to betel nuts also as observed by the High Court some wastage is inevitable and this wastage can normally be fixed only approximately and this is precisely what the High Court had done. We do not find any cogent ground for disagreeing with the approach of the High Court and for interfering with this conclusion.15. The last objection relates to the claims of the widows. According to Shri Latifi the widow should have got only one-fourth share and the High Court should have left the question open. | 0[ds]5. The only grievance the appellant seems to have in this appeal relates to his claim in the assets forming partnership business which was extensive.Shri Latifi, learned counsel for the appellant, in the first instance tried to assail the very basis of the ascertainment of shares of the various partners in that business by submitting that their rights and liabilities were governed by Mohammadan law and not by the terms of the partnership.This attempt was, however, soon given up and, in our opinion, rightly.6.The learned counsel in fact challenged the conclusion of the High Court only on certain items. The general arguments, however, was confined to the challenge to they defendant No. 1 of the accounts of partnership. It was submitted that defendant No. 1 was mainly looking after the partnership business and had in his custody all the accounts of the business. He stood in a fiduciary capacity towards the younger members of the partnership and had, therefore, to satisfy the conscience of the court that the interest of the other members of the partnership particularly of the plaintiff had not suffered and had been fully safeguarded by him. The accounts before 1925 were not produced and the explanation that they had been accidentally destroyed is unacceptable. On this reasoning Shri Latifi contended that adverse inference should have been drawn against defendant No. 1.This argument, in our opinion, ignores the concluding portion of the judgment of the High Court when passing the preliminary decree.In so far as the accounts after November 19, 1925 are concerned, they were all before the Commissioner and the courts below. The grievance that the relevant accounts were not produced is, therefore, unfounded. The plaintiffs contention raised in the trial court that the first defendant had kept two sets of accounts, one for income tax purposes and the other showing the real state of affairs was repelled by that court as unsubstantiated. This conclusion has not been shown to be in any way erroneous.8.We will now deal with the specific items canvassed by Shri Latifi. The first item to which he took objection is a sum of Rs. 23, 900 deposited with the. It is complained that this item is not entered in the accounts.This seems to us to be factually incorrect because in the trial court the objection was clearly confined only to the amount of interest having not been entered in theit may be pointed out that the respondents counsel also submitted that this objection had not specifically raised before the Commissioners. This seems to be so. It is clear that the appellants grievance has noare concerned with the date March 27, 1934 which is the date for winding up of the affairs of this partnership. Theas on that date is an asset of the partnership liable to be divided among the partners at the dissolution. Exhibit 77 is the ledger of the partnership for the yearUp to March 27, 1934 the balance stock on hand must be taken into account and their value will be ascertained. The value will be ascertained on the basis of the sale next preceding the date March 27, 1934. A separate statement will be worked out on this basis. This will be the value of the stock on hand as on March 27, 1934. This value should be treated as the assets of the partnership and will be added to the profits and divided among the partners and according to their shares as specified in Exhibit III."The High Court disposed of this objection in these wordsitem objected by Mr. Thyegarajan is a sum of Rs. 30,representing the value of the stock on hand. Mr. Thyagarajans case was that this was already taken into account by the Commissioner in working out the profits and assets. This appears to be so. That is the reason why the plaintiff never objected before the Commissioner. We allow this amount to be deducted from defendant 1s accountability as arrived at by the lower court.We are unable to find anything wrong with this reasoning. The appellants grievance regarding this item is thus clearlynothing specific was urged about the tobacco account. The conclusion of the High Court, therefore, seems to us to be unexceptionable and indeed the appellants learned counsel was unable to persuade as to disagree withour view, the High Courts approach is correct and the trial court had wrongly assumed that the fact that defendant No. 1 had entered into a partnership with a stranger after withdrawing certain amounts from the partnership must be held to be a part of the main business. We do not think there is any material to justify this conclusion. The appellants challenge thuscriticism levelled by Shri Latifi that the accounts with regard to petrol leakage were not produced is, in our opinion, unacceptable for it is normally not practicable to keep account with respect to such petrol leakage. In regard to betel nuts also as observed by the High Court some wastage is inevitable and this wastage can normally be fixed only approximately and this is precisely what the High Court had done. We do not find any cogent ground for disagreeing with the approach of the High Court and for interfering with this conclusion.15. The last objection relates to the claims of the widows. According to Shri Latifi the widow should have got onlyshare and the High Court should have left the question open. | 0 | 5,145 | 973 | ### Instruction:
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the business conducted by Dadamian Sahib & Sons. The first defendant has not produced any of the accounts relating to this business though he was summoned by the plaintiff to produce them. His contention is that this business is a separate business carried on by him in partnership with other and that, therefore, the plaintiff is not entitled to any interest in it. The Commissioner has dealt with this matter at pages 9 and 10 of his report. He says that the Bowringpet business cannot be said to be a business carried on by the suit partnership because the first defendant was carrying on the business in partnership with strangers who had nothing to do with this partnership. I do not think that a sufficient ground for negativing the plaintiffs contention. The suit partnership had been carrying on some business in partnership with persons who were not partners in the suit partnership. For instance the tobacco business is said to have carried on in Vasakattu with others who were not partners of Dadamian Sahib & Sons. This is admitted by the counsel for the first defendant. Therefore the mere fact that the first defendant has been doing the Bowringpet business in partnership with other will not show that it is not on behalf of the suit partnership. As has been pointed out by the Commissioner himself, the 1st defendant had utilised the funds of the suit partnership for conducting the Bowringpet business in petrol and kerosene. There is also a ledger page in the suit partnership accounts for the Bowringpet business as stated by the Commissioner. These clearly show that the Bowringpet business is also part of the suit partnership. The High Court has held that the 1st defendant must account for the business carried on by him in his own name as well as the business formally known as Dadamian Sahib & Sons. The Bowringpet business being admittedly one of the businesses carried on by 1st defendant in his own name though along with others, it is covered by the High Courts decree and the 1st defendant must account for his share of the profits of that business also.But the 1st defendant having failed to produce the account books of this Bowringpet business in spite of the plaintiffs notice given to him, interest on the amount utilised by the 1st defendant from the suit partnership must be charged in lieu of the profits. I think that the 1st defendant is suppressing the accounts of this business because this business yielded considerable profits. This business deals in petrol and kerosene. The plaintiff claims interest at 24 per cent. per annum but I think that this is excessive. I think that 12 per cent. per annum would be a reasonable rate of interest."The High Court dealt with this item thus :"The next item is a sum of Rs. 11, 608-0-9, representing the profits got by the Bowringpet business and interest thereon. Mr. Thyagarajan contended that a sum of Rs. 5, 500 had been drawn out by the 1st defendant from the suit partnership assets for becoming a partner in the Bowringpet business, and that the 1st defendant would be liable only for this Rs. 5, 500 with interest at 6 per cent. per annum from the date of drawing as the profits were not greater. Worked out on that basis, it will come to Rs. 8, 600 and odd. So relief can be claimed only regarding the balance of Rs. 3, 000 under this head. This was one of the items objected to before the Commissioner by the plaintiff."In our view, the High Courts approach is correct and the trial court had wrongly assumed that the fact that defendant No. 1 had entered into a partnership with a stranger after withdrawing certain amounts from the partnership must be held to be a part of the main business. We do not think there is any material to justify this conclusion. The appellants challenge thus fails.14. The next item refers to petrol leakage and betel nut. The High Court has dealt with these items in these words :"The next item is a sum of Rs. 4, 074-8-0 claimed as refund of family funds for purchase of Items 6, 7, 10 and 11. In view of our finding that items 7 and 10 were actually purchased for the family, and that an adjustment has been made regarding the advance for the purchase of the other two items this item disallowed. The next item is a sum of Rs. 2, 113-12-10 claimed by the plaintiff as allowance for petrol leakage. But, in those days, it appears that the bunk system of pump petrol had not come into vogue, and no leakage seems to have been allowed for petrol as it was supplied in leak-proof 2 gallons tins. The evidence shows this. We believe the evidence and we allow this item in favour of defendant 1. Next we come to Rs. 3, 400 claimed for betal nut wastage. Some wastage was inevitable in a trade in betel nut, but more than 5 per cent. is not justifiable in the absence of proof of actual wastage above that limit. So we allow Rs. 2, 500 under this head and disallow the rest."The criticism levelled by Shri Latifi that the accounts with regard to petrol leakage were not produced is, in our opinion, unacceptable for it is normally not practicable to keep account with respect to such petrol leakage. In regard to betel nuts also as observed by the High Court some wastage is inevitable and this wastage can normally be fixed only approximately and this is precisely what the High Court had done. We do not find any cogent ground for disagreeing with the approach of the High Court and for interfering with this conclusion.15. The last objection relates to the claims of the widows. According to Shri Latifi the widow should have got only one-fourth share and the High Court should have left the question open.
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5. The only grievance the appellant seems to have in this appeal relates to his claim in the assets forming partnership business which was extensive.Shri Latifi, learned counsel for the appellant, in the first instance tried to assail the very basis of the ascertainment of shares of the various partners in that business by submitting that their rights and liabilities were governed by Mohammadan law and not by the terms of the partnership.This attempt was, however, soon given up and, in our opinion, rightly.6.The learned counsel in fact challenged the conclusion of the High Court only on certain items. The general arguments, however, was confined to the challenge to they defendant No. 1 of the accounts of partnership. It was submitted that defendant No. 1 was mainly looking after the partnership business and had in his custody all the accounts of the business. He stood in a fiduciary capacity towards the younger members of the partnership and had, therefore, to satisfy the conscience of the court that the interest of the other members of the partnership particularly of the plaintiff had not suffered and had been fully safeguarded by him. The accounts before 1925 were not produced and the explanation that they had been accidentally destroyed is unacceptable. On this reasoning Shri Latifi contended that adverse inference should have been drawn against defendant No. 1.This argument, in our opinion, ignores the concluding portion of the judgment of the High Court when passing the preliminary decree.In so far as the accounts after November 19, 1925 are concerned, they were all before the Commissioner and the courts below. The grievance that the relevant accounts were not produced is, therefore, unfounded. The plaintiffs contention raised in the trial court that the first defendant had kept two sets of accounts, one for income tax purposes and the other showing the real state of affairs was repelled by that court as unsubstantiated. This conclusion has not been shown to be in any way erroneous.8.We will now deal with the specific items canvassed by Shri Latifi. The first item to which he took objection is a sum of Rs. 23, 900 deposited with the. It is complained that this item is not entered in the accounts.This seems to us to be factually incorrect because in the trial court the objection was clearly confined only to the amount of interest having not been entered in theit may be pointed out that the respondents counsel also submitted that this objection had not specifically raised before the Commissioners. This seems to be so. It is clear that the appellants grievance has noare concerned with the date March 27, 1934 which is the date for winding up of the affairs of this partnership. Theas on that date is an asset of the partnership liable to be divided among the partners at the dissolution. Exhibit 77 is the ledger of the partnership for the yearUp to March 27, 1934 the balance stock on hand must be taken into account and their value will be ascertained. The value will be ascertained on the basis of the sale next preceding the date March 27, 1934. A separate statement will be worked out on this basis. This will be the value of the stock on hand as on March 27, 1934. This value should be treated as the assets of the partnership and will be added to the profits and divided among the partners and according to their shares as specified in Exhibit III."The High Court disposed of this objection in these wordsitem objected by Mr. Thyegarajan is a sum of Rs. 30,representing the value of the stock on hand. Mr. Thyagarajans case was that this was already taken into account by the Commissioner in working out the profits and assets. This appears to be so. That is the reason why the plaintiff never objected before the Commissioner. We allow this amount to be deducted from defendant 1s accountability as arrived at by the lower court.We are unable to find anything wrong with this reasoning. The appellants grievance regarding this item is thus clearlynothing specific was urged about the tobacco account. The conclusion of the High Court, therefore, seems to us to be unexceptionable and indeed the appellants learned counsel was unable to persuade as to disagree withour view, the High Courts approach is correct and the trial court had wrongly assumed that the fact that defendant No. 1 had entered into a partnership with a stranger after withdrawing certain amounts from the partnership must be held to be a part of the main business. We do not think there is any material to justify this conclusion. The appellants challenge thuscriticism levelled by Shri Latifi that the accounts with regard to petrol leakage were not produced is, in our opinion, unacceptable for it is normally not practicable to keep account with respect to such petrol leakage. In regard to betel nuts also as observed by the High Court some wastage is inevitable and this wastage can normally be fixed only approximately and this is precisely what the High Court had done. We do not find any cogent ground for disagreeing with the approach of the High Court and for interfering with this conclusion.15. The last objection relates to the claims of the widows. According to Shri Latifi the widow should have got onlyshare and the High Court should have left the question open.
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SUBODH KUMAR & ORS Vs. COMMISSIONER OF POLICE & ORS | 16 of the Constitution and deserves to be interfered with by this Court. 12. Learned counsel further submits that an apparent error has been committed by the High Court in holding that the amended rules give equal opportunity to in-service candidates to compete with open market candidates against 50% of direct recruitment quota. According to the learned counsel, the High Court has completely misdirected both in facts and law. In-service candidates cannot compete with open market candidates for the reason that the upper age for open market direct recruits is 25 years whereas for in-service candidates, it is 30 years. It is not possible for serving Constables, Head Constables or ASI to compete for the direct recruitment quota before the age of 25 years. Both the categories are distinct and different. The amendment which has been made in the upper age limit for the candidates to participate for the post of Sub-Inspector (Exe.) Male under notification dated 13 th March, 2013 is indirect way of elimination of the serving candidates in the process of selection. Such an amendment being irrational and has no nexus with the object to the achieved. The very purpose as projected attract meritorious persons in the rank of Constable, Head Constable and ASIs to shoulder higher responsibilities is not going to be achieved under the impugned amendment notification dated 13 th March, 2013. 13. Ms. Madhavi Divan, learned ASG, appearing for the respondents, on the other hand, while supporting the judgment of the Tribunal confirmed by the High Court submits that it is a not a fast track promotion of the serving personnel to the post of Sub- Inspector(Executive). For serving personnel, 50% quota is reserved for promotion in their respective channel and after qualifying the minimum service as Assistant Sub-Inspector, one could be considered for promotion against 50% of promotion quota but so far as 50% quota reserved by direct recruitment is concerned, it is an open selection and 10% out of 50% quota of direct recruitment is carved out for the serving personnel whose suitability has to be adjudged on the same standards and yardsticks prevalent for open selection under the scheme of Rules, 1980 and that is the reason for which an amendment has been made under notification dated 13 th March, 2013. The upper age limit which has been modified relating to the departmental candidates has a reasonable nexus and pre-existing upper age limit would lead to shortage of young officers at the level of Sub- Inspectors which is dire need of the day where police duties have become highly arduous and also for the reason the departmental candidates are awaiting their opportunity in promotion quota and were desirous that selection under direct recruitment quota be brought not only in alignment with CAPF but the object was to have young officers at middle level of the force and also to have pan India representation in Delhi Police through SSC recruitment. 14. Learned counsel further submits that eligibility qualifications for recruitment or promotion in service are ordinarily the matters to be considered by the appropriate authority and not by the Courts. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. Prescribing of any age limit for a given post, as also deciding the extent to which any relaxation given if an age limit is prescribed, are essentially matters of policy and as long as its competence in making such amendments would serve a public purpose, it is not open to be interfered with by this Court under limited scope of judicial review after it has been examined by the Tribunal and confirmed by the High Court. 15. It is a settled law that prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially the matters of policy. It is always open for the Government or the appointing authority while framing rules, to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot ordinarily be termed as arbitrary or unreasonable. Just because the amendment under notification dated 13 th March, 2013 has curtailed the chances of the appellants to take part in the selection process, it cannot lead to an inference that the rule is arbitrary or unreasonable as prayed for. 16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the rule in force on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. 17. The four significant changes which have been made under the amendment notification dated 13 th March, 2013 envisage that while giving due opportunity to the in-service candidates for participating against 10% out of the 50% quota reserved for direct recruitment to compete in the self-same selection process on the same standards and yardsticks except giving some advantage in relaxation of upper age limit for a fair consideration in the process of selection and scaling the upper age limit indeed may reduce the number of serving personnel holding the post of Constable/Head Constable/ASI in competing with the candidates in the open selection but that in itself cannot be regarded as unconstitutional or arbitrary as prayed for by the appellants and at the same time, it may not be construed to be a fast track promotion to the serving personnel reserving right of in-service personnel for their promotion against 50% quota separately reserved under the scheme of Rules, 1980. | 0[ds]15. It is a settled law that prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially the matters of policy. It is always open for the Government or the appointing authority while framing rules, to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot ordinarily be termed as arbitrary or unreasonable. Just because the amendment under notification dated 13 th March, 2013 has curtailed the chances of the appellants to take part in the selection process, it cannot lead to an inference that the rule is arbitrary or unreasonable as prayed for16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the rule in force on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion17. The four significant changes which have been made under the amendment notification dated 13 th March, 2013 envisage that while giving due opportunity to the in-service candidates for participating against 10% out of the 50% quota reserved for direct recruitment to compete in the self-same selection process on the same standards and yardsticks except giving some advantage in relaxation of upper age limit for a fair consideration in the process of selection and scaling the upper age limit indeed may reduce the number of serving personnel holding the post of Constable/Head Constable/ASI in competing with the candidates in the open selection but that in itself cannot be regarded as unconstitutional or arbitrary as prayed for by the appellants and at the same time, it may not be construed to be a fast track promotion to the serving personnel reserving right of in-service personnel for their promotion against 50% quota separately reserved under the scheme of Rules, 1980. | 0 | 3,089 | 405 | ### Instruction:
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16 of the Constitution and deserves to be interfered with by this Court. 12. Learned counsel further submits that an apparent error has been committed by the High Court in holding that the amended rules give equal opportunity to in-service candidates to compete with open market candidates against 50% of direct recruitment quota. According to the learned counsel, the High Court has completely misdirected both in facts and law. In-service candidates cannot compete with open market candidates for the reason that the upper age for open market direct recruits is 25 years whereas for in-service candidates, it is 30 years. It is not possible for serving Constables, Head Constables or ASI to compete for the direct recruitment quota before the age of 25 years. Both the categories are distinct and different. The amendment which has been made in the upper age limit for the candidates to participate for the post of Sub-Inspector (Exe.) Male under notification dated 13 th March, 2013 is indirect way of elimination of the serving candidates in the process of selection. Such an amendment being irrational and has no nexus with the object to the achieved. The very purpose as projected attract meritorious persons in the rank of Constable, Head Constable and ASIs to shoulder higher responsibilities is not going to be achieved under the impugned amendment notification dated 13 th March, 2013. 13. Ms. Madhavi Divan, learned ASG, appearing for the respondents, on the other hand, while supporting the judgment of the Tribunal confirmed by the High Court submits that it is a not a fast track promotion of the serving personnel to the post of Sub- Inspector(Executive). For serving personnel, 50% quota is reserved for promotion in their respective channel and after qualifying the minimum service as Assistant Sub-Inspector, one could be considered for promotion against 50% of promotion quota but so far as 50% quota reserved by direct recruitment is concerned, it is an open selection and 10% out of 50% quota of direct recruitment is carved out for the serving personnel whose suitability has to be adjudged on the same standards and yardsticks prevalent for open selection under the scheme of Rules, 1980 and that is the reason for which an amendment has been made under notification dated 13 th March, 2013. The upper age limit which has been modified relating to the departmental candidates has a reasonable nexus and pre-existing upper age limit would lead to shortage of young officers at the level of Sub- Inspectors which is dire need of the day where police duties have become highly arduous and also for the reason the departmental candidates are awaiting their opportunity in promotion quota and were desirous that selection under direct recruitment quota be brought not only in alignment with CAPF but the object was to have young officers at middle level of the force and also to have pan India representation in Delhi Police through SSC recruitment. 14. Learned counsel further submits that eligibility qualifications for recruitment or promotion in service are ordinarily the matters to be considered by the appropriate authority and not by the Courts. It is the employer who is best suited to decide the requirements a candidate must possess according to the needs of the employer and the nature of work. Prescribing of any age limit for a given post, as also deciding the extent to which any relaxation given if an age limit is prescribed, are essentially matters of policy and as long as its competence in making such amendments would serve a public purpose, it is not open to be interfered with by this Court under limited scope of judicial review after it has been examined by the Tribunal and confirmed by the High Court. 15. It is a settled law that prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially the matters of policy. It is always open for the Government or the appointing authority while framing rules, to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot ordinarily be termed as arbitrary or unreasonable. Just because the amendment under notification dated 13 th March, 2013 has curtailed the chances of the appellants to take part in the selection process, it cannot lead to an inference that the rule is arbitrary or unreasonable as prayed for. 16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the rule in force on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion. 17. The four significant changes which have been made under the amendment notification dated 13 th March, 2013 envisage that while giving due opportunity to the in-service candidates for participating against 10% out of the 50% quota reserved for direct recruitment to compete in the self-same selection process on the same standards and yardsticks except giving some advantage in relaxation of upper age limit for a fair consideration in the process of selection and scaling the upper age limit indeed may reduce the number of serving personnel holding the post of Constable/Head Constable/ASI in competing with the candidates in the open selection but that in itself cannot be regarded as unconstitutional or arbitrary as prayed for by the appellants and at the same time, it may not be construed to be a fast track promotion to the serving personnel reserving right of in-service personnel for their promotion against 50% quota separately reserved under the scheme of Rules, 1980.
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15. It is a settled law that prescribing of any age limit for a given post, as also deciding the extent to which any relaxation can be given if an age limit is prescribed, are essentially the matters of policy. It is always open for the Government or the appointing authority while framing rules, to prescribe such age limits or to prescribe the extent to which any relaxation can be given. Prescription of such limit or the extent of relaxation to be given, cannot ordinarily be termed as arbitrary or unreasonable. Just because the amendment under notification dated 13 th March, 2013 has curtailed the chances of the appellants to take part in the selection process, it cannot lead to an inference that the rule is arbitrary or unreasonable as prayed for16. It is equally a settled proposition of law that a candidate has a right to be considered under the existing rules, which implies the rule in force on the date the consideration took place. There is no rule of universal or absolute application that vacancies are to be filled invariably by the law existing on the date when the vacancy arises. The requirement of filling up earlier year vacancies under the old rules is interlinked with the candidate having acquired a right to be considered for promotion17. The four significant changes which have been made under the amendment notification dated 13 th March, 2013 envisage that while giving due opportunity to the in-service candidates for participating against 10% out of the 50% quota reserved for direct recruitment to compete in the self-same selection process on the same standards and yardsticks except giving some advantage in relaxation of upper age limit for a fair consideration in the process of selection and scaling the upper age limit indeed may reduce the number of serving personnel holding the post of Constable/Head Constable/ASI in competing with the candidates in the open selection but that in itself cannot be regarded as unconstitutional or arbitrary as prayed for by the appellants and at the same time, it may not be construed to be a fast track promotion to the serving personnel reserving right of in-service personnel for their promotion against 50% quota separately reserved under the scheme of Rules, 1980.
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D. N. Roy And S. K. Bannerjee And Ors Vs. State Of Bihar And Ors | Mining lease to M/s D. N. Roy and S. K. Bannerjee and further direct them to throw open the area again under Rule 58 (1) of Mineral Concession Rules 1960 for regrant. The notification should clearly indicate the date from which the area could be available for re-grant and the date by which the petitioners should submit their applications for mineral concession.4. M/s D. N. Roy and S. K. Bannerjee are being informed.Yours faithfullySd/- H. S. SahniUnder Secretary to the Government of IndiaCopy forwarded to M/s. D. N. Roy and S. K. Bannerjee village and P. O. Churulia, Distt Burdwan (West Bengal) with reference to their letter dated 12-6-1963.Sd/- H. S. SahniUnder Secretary to the Government of India"3. Aggrieved by this order the appellant moved the Patna High Court under Article 226 of the Constitution to quash the order of the Central Government dated November 5, 1964 (which will hereinafter be referred to as the impugned order,). The High Court dismissed its petition. As against the order of the High Court the appellant has brought this appeal after obtaining certificate of fitness from the High Court.4. It was urged before the High Court that the Government having passed the final order on September 30, 1964, it had no power to review its own order and make any further order. Admittedly there is no provision under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules, 1960 empowering the Central Government to review its order. The High Court did not hold that the Central Government had any power to review its own order either under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules. It upheld the Central Governments order on two grounds namely that the order dated September 30, 1964 is not a complete order as it did not dispose of the application made by the 5th respondent completely and secondly the Central Government had suo motu power to review the order of the State Government under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957. These conclusions of the High Court were assailed before us.5. In his application under Rule 54 of the Mineral Concession Rules, 1960, the 5th respondent prayed for (i) setting aside the grant made in favour of the appellant and (ii) grant the area in question on lease to him. The High Court thought that these are two independent prayers. In its view the Central Government by its order dated September 30, 1964 had disposed of only the prayer of the 5th respondent to grant the area on lease to him but it had not disposed of his first prayer? namely to cancel the grant in favour of the appellant. In our opinion this is an incorrect approach. The two reliefs asked for by the 5th respondent were interconnected reliefs. In the context in which they were made, they cannot be considered as independent prayers. No grant in his favour could have been made without first setting aside the grant made in favour of the appellant. Therefore the first relief asked for by the 5th respondent is a necessary condition precedent for a grant in his favour. Further by its order dated September 30, 1964, the Central Government dismissed the entire application of the 5th respondent on the ground that the same was time-barred. If his application in respect of one part of his prayer was time-barred, it was equally time-barred in respect of the other part.6. The impugned order of the Central Government does not show that it was made in the exercise of its suo moto power. It is purported to have been made on the basis of the application made by the 5th respondent under Rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of that order it says "in view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral Concession Rules, 1960 and all other powers enabling in this behalf hereby set aside the order of the State Government contained in their letter No. A/MM/4031/62-1789M dated 31-3-1962".7. It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo moto powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo moto power. At all stages it purported to act under Rules 54 and 56 of the Mineral Concession Rules, 1960. If the Central Government wanted to exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise its suo motu power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order. | 1[ds]4. It was urged before the High Court that the Government having passed the final order on September 30, 1964, it had no power to review its own order and make any further order. Admittedly there is no provision under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules, 1960 empowering the Central Government to review its order. The High Court did not hold that the Central Government had any power to review its own order either under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules. It upheld the Central Governments order on two grounds namely that the order dated September 30, 1964 is not a complete order as it did not dispose of the application made by the 5th respondent completely and secondly the Central Government had suo motu power to review the order of the State Government under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957. These conclusions of the High Court were assailed before us.The impugned order of the Central Government does not show that it was made in the exercise of its suo moto power. It is purported to have been made on the basis of the application made by the 5th respondent under Rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of that order it says "in view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral Concession Rules, 1960 and all other powers enabling in this behalf hereby set aside the order of the State Government contained in their letter No.7. It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo moto powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo moto power. At all stages it purported to act under Rules 54 and 56 of the Mineral Concession Rules, 1960. If the Central Government wanted to exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise its suo motu power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order. | 1 | 1,987 | 631 | ### 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:
Mining lease to M/s D. N. Roy and S. K. Bannerjee and further direct them to throw open the area again under Rule 58 (1) of Mineral Concession Rules 1960 for regrant. The notification should clearly indicate the date from which the area could be available for re-grant and the date by which the petitioners should submit their applications for mineral concession.4. M/s D. N. Roy and S. K. Bannerjee are being informed.Yours faithfullySd/- H. S. SahniUnder Secretary to the Government of IndiaCopy forwarded to M/s. D. N. Roy and S. K. Bannerjee village and P. O. Churulia, Distt Burdwan (West Bengal) with reference to their letter dated 12-6-1963.Sd/- H. S. SahniUnder Secretary to the Government of India"3. Aggrieved by this order the appellant moved the Patna High Court under Article 226 of the Constitution to quash the order of the Central Government dated November 5, 1964 (which will hereinafter be referred to as the impugned order,). The High Court dismissed its petition. As against the order of the High Court the appellant has brought this appeal after obtaining certificate of fitness from the High Court.4. It was urged before the High Court that the Government having passed the final order on September 30, 1964, it had no power to review its own order and make any further order. Admittedly there is no provision under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules, 1960 empowering the Central Government to review its order. The High Court did not hold that the Central Government had any power to review its own order either under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules. It upheld the Central Governments order on two grounds namely that the order dated September 30, 1964 is not a complete order as it did not dispose of the application made by the 5th respondent completely and secondly the Central Government had suo motu power to review the order of the State Government under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957. These conclusions of the High Court were assailed before us.5. In his application under Rule 54 of the Mineral Concession Rules, 1960, the 5th respondent prayed for (i) setting aside the grant made in favour of the appellant and (ii) grant the area in question on lease to him. The High Court thought that these are two independent prayers. In its view the Central Government by its order dated September 30, 1964 had disposed of only the prayer of the 5th respondent to grant the area on lease to him but it had not disposed of his first prayer? namely to cancel the grant in favour of the appellant. In our opinion this is an incorrect approach. The two reliefs asked for by the 5th respondent were interconnected reliefs. In the context in which they were made, they cannot be considered as independent prayers. No grant in his favour could have been made without first setting aside the grant made in favour of the appellant. Therefore the first relief asked for by the 5th respondent is a necessary condition precedent for a grant in his favour. Further by its order dated September 30, 1964, the Central Government dismissed the entire application of the 5th respondent on the ground that the same was time-barred. If his application in respect of one part of his prayer was time-barred, it was equally time-barred in respect of the other part.6. The impugned order of the Central Government does not show that it was made in the exercise of its suo moto power. It is purported to have been made on the basis of the application made by the 5th respondent under Rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of that order it says "in view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral Concession Rules, 1960 and all other powers enabling in this behalf hereby set aside the order of the State Government contained in their letter No. A/MM/4031/62-1789M dated 31-3-1962".7. It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo moto powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo moto power. At all stages it purported to act under Rules 54 and 56 of the Mineral Concession Rules, 1960. If the Central Government wanted to exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise its suo motu power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order.
### Response:
1
### Explanation:
4. It was urged before the High Court that the Government having passed the final order on September 30, 1964, it had no power to review its own order and make any further order. Admittedly there is no provision under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules, 1960 empowering the Central Government to review its order. The High Court did not hold that the Central Government had any power to review its own order either under the Mines and Minerals (Regulation and Development) Act, 1957 or under the Mineral Concession Rules. It upheld the Central Governments order on two grounds namely that the order dated September 30, 1964 is not a complete order as it did not dispose of the application made by the 5th respondent completely and secondly the Central Government had suo motu power to review the order of the State Government under Section 30 of the Mines and Minerals (Regulation and Development) Act, 1957. These conclusions of the High Court were assailed before us.The impugned order of the Central Government does not show that it was made in the exercise of its suo moto power. It is purported to have been made on the basis of the application made by the 5th respondent under Rule 54 of the Mineral Concession Rules, 1960. In paragraph 3 of that order it says "in view of the position explained above the Central Government in exercise of their revisionary power conferred by Rule 55 of Mineral Concession Rules, 1960 and all other powers enabling in this behalf hereby set aside the order of the State Government contained in their letter No.7. It is true that the order in question also refers to "all other powers enabling in this behalf". But in its return to the writ petition the Central Government did not plead that the impugned order was passed in exercise of its suo moto powers. We agree that if the exercise of a power can be traced to an existing power even though that power was not purported to have been exercised under certain circumstances, the exercise of the power can be upheld on the strength of an undisclosed but undoubted power. But in this case the difficulty is that at no stage the Central Government intimated to the appellant that it was exercising its suo moto power. At all stages it purported to act under Rules 54 and 56 of the Mineral Concession Rules, 1960. If the Central Government wanted to exercise its suo motu power it should have intimated that fact as well as the grounds on which it proposed to exercise that power to the appellant and given him an opportunity to show cause against the exercise of suo motu power as well as against the grounds on which it wanted to exercise its power. Quite clearly the Central Government had not given him that opportunity. The High Court thought that as the Central Government had not only intimated to the appellant the grounds mentioned in the application made by the 5th respondent but also the comments of the State Government, the appellant had adequate opportunity to put forward his case. This conclusion in our judgment is untenable. At no stage the appellant was informed that the Central Government proposed to exercise its suo motu power and asked him to show cause against the exercise of such a power. Failure of the Central Government to do so, in our opinion, vitiates the impugned order.
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Pullangode Rubber and Produce Company Limited Vs. Commissioner of Agricultural Income Tax, Kerala | SHAH J.1. An appeal was filed before the Agricultural Income tax Appellate Tribunal by the appellant company claiming that an amount of Rs. 55, 708 received as an instalment of consideration payable under a deed dated February 19, 1962, was of the nature of capital and not income and was on that account not liable to be taxed. The Appellate Tribunal, on a review of the relevant covenants in the deed, held that the transaction between the parties was one of sale of old trees which were unfit for tapping and that the price received for sale of rubber trees was not liable to be included in " agricultural income " as defined in section 2 of the Agricultural Income tax Act. The Tribunal further recorded that by the covenants of the agreement a right to cut and remove the trees and not to subject them to the process of tapping was granted, and the grant being, of trees and not of a right to tap trees, the company received no income out of the transaction. At the instance of the Commissioner of Agricultural Income-tax, Kerala State, three questions were referred to the High Court of Kerala. They were" (i) On the facts and in the circumstances of the case. is the Tribunal right in holding that there is nothing in the agreement dated February 19, 1962, to show that it was a composite agreement of lease and sale?(ii) On the facts and in the circumstances of the case, is the Tribunal right in holding that the agreement dated February 19, 1962, is an agreement for an outright sale of rubber trees ?(iii) Is the Tribunal right in giving a literal interpretation to the agreement without duly considering the attendant circumstances like the unreasonableness of the time allowed for cutting and removing the trees, the unreasonableness of the amount shown as consideration for the sale of the rubber trees, that the trees are capable of being tapped for two or three years more, etc., and how the parties acted under it ?"The High Court declined to answer questions Nos. 1 and 2, and on the third question the High Court recorded an answer in the negative. With special leave granted by this court, the assessee has appealed to this court2. The frame of the third question answered by the High Court is open to grave objection. There was no finding by the Tribunal that there were any attendant circumstances which indicated that the agreement did not record the covenant relating to the cutting of the trees and was intended to camouflage a grant of rights to tap latex from standing rubber trees. It was urged before the Tribunal that the wording of the agreement dated February 19, 1962, alone could not " be a criterion in deciding whether the actual intention was to cut and remove the trees or to subject the trees to slaughter tapping and remove the trees after so tapping them ". Counsel for the State had invited the attention of the Tribunal that the consideration fixed was also consistent with the agreement being one of a grant of a right to tap and not sale of trees. The Tribunal, however, held that " no extraneous motives could be imported into the terms of the agreement ". They observed that the agreement was one for sale of rubber trees and the sale proceeds of the rubber trees was a capital receipt. The question referred to the High Court could only arise out of the order of the Tribunal. The assumption made in the third question that in fact there were attendant circumstances like " unreasonableness of the time allowed for cutting and removing the trees ", the unreasonableness of the amount shown as consideration for the sale of the rubber trees, and " that the trees are capable of being tapped for two or three years more ", were not founded on any decision of the Tribunal. The jurisdiction which the High Court was exercising was purely advisory. The High Court could answer a question of law which arose out of the order of the Tribunal. The High Court apparently assumed certain facts which are not shown to have been determined by the Tribunal and, on the assumption that those facts existed, the High Court has held that the agreement was not one which represented the true bargain between the parties. The High Court observed that it is open to a Tribunal to find on proper evidence that the agreement purporting to embody a transaction does not represent the real bargain, or any bargain, between the parties. That observation is unexceptionable. But the High Court was in error in observing that the Appellate Tribunal had held that the revenue was not entitled to go behind the document and determine the true legal character of the transaction on a consideration of extraneous evidence. The Tribunal did not say that it was not competent to determine the true intention of the parties camouflaged by false recitals. The Tribunal merely held that the covenants in the agreement represented a genuine bargain between the parties and on the effect of those covenants it had to determine the true relationship, and the true relationship was one of vendor and purchaser and not of lessor and lesseeIn that view of the case, we are unable to uphold the judgment of the High Court recording an answer in the negative on the third question. We are of the view that the third question did not arise out of the order of the Tribunal and the High Court should have declined to answer that question3. | 1[ds]There was no finding by the Tribunal that there were any attendant circumstances which indicated that the agreement did not record the covenant relating to the cutting of the trees and was intended to camouflage a grant of rights to tap latex from standing rubber trees. It was urged before the Tribunal that the wording of the agreement dated February 19, 1962, alone could not " be a criterion in deciding whether the actual intention was to cut and remove the trees or to subject the trees to slaughter tapping and remove the trees after so tapping them ". Counsel for the State had invited the attention of the Tribunal that the consideration fixed was also consistent with the agreement being one of a grant of a right to tap and not sale of trees. The Tribunal, however, held that " no extraneous motives could be imported into the terms of the agreement ". They observed that the agreement was one for sale of rubber trees and the sale proceeds of the rubber trees was a capital receipt. The question referred to the High Court could only arise out of the order of the Tribunal. The assumption made in the third question that in fact there were attendant circumstances like " unreasonableness of the time allowed for cutting and removing the trees ", the unreasonableness of the amount shown as consideration for the sale of the rubber trees, and " that the trees are capable of being tapped for two or three years more ", were not founded on any decision of the Tribunal. The jurisdiction which the High Court was exercising was purely advisory. The High Court could answer a question of law which arose out of the order of the Tribunal. The High Court apparently assumed certain facts which are not shown to have been determined by the Tribunal and, on the assumption that those facts existed, the High Court has held that the agreement was not one which represented the true bargain between the parties. The High Court observed that it is open to a Tribunal to find on proper evidence that the agreement purporting to embody a transaction does not represent the real bargain, or any bargain, between the parties. That observation is unexceptionable. But the High Court was in error in observing that the Appellate Tribunal had held that the revenue was not entitled to go behind the document and determine the true legal character of the transaction on a consideration of extraneous evidence. The Tribunal did not say that it was not competent to determine the true intention of the parties camouflaged by false recitals. The Tribunal merely held that the covenants in the agreement represented a genuine bargain between the parties and on the effect of those covenants it had to determine the true relationship, and the true relationship was one of vendor and purchaser and not of lessor and lesseeIn that view of the case, we are unable to uphold the judgment of the High Court recording an answer in the negative on the third question. We are of the view that the third question did not arise out of the order of the Tribunal and the High Court should have declined to answer that question | 1 | 1,013 | 576 | ### 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:
SHAH J.1. An appeal was filed before the Agricultural Income tax Appellate Tribunal by the appellant company claiming that an amount of Rs. 55, 708 received as an instalment of consideration payable under a deed dated February 19, 1962, was of the nature of capital and not income and was on that account not liable to be taxed. The Appellate Tribunal, on a review of the relevant covenants in the deed, held that the transaction between the parties was one of sale of old trees which were unfit for tapping and that the price received for sale of rubber trees was not liable to be included in " agricultural income " as defined in section 2 of the Agricultural Income tax Act. The Tribunal further recorded that by the covenants of the agreement a right to cut and remove the trees and not to subject them to the process of tapping was granted, and the grant being, of trees and not of a right to tap trees, the company received no income out of the transaction. At the instance of the Commissioner of Agricultural Income-tax, Kerala State, three questions were referred to the High Court of Kerala. They were" (i) On the facts and in the circumstances of the case. is the Tribunal right in holding that there is nothing in the agreement dated February 19, 1962, to show that it was a composite agreement of lease and sale?(ii) On the facts and in the circumstances of the case, is the Tribunal right in holding that the agreement dated February 19, 1962, is an agreement for an outright sale of rubber trees ?(iii) Is the Tribunal right in giving a literal interpretation to the agreement without duly considering the attendant circumstances like the unreasonableness of the time allowed for cutting and removing the trees, the unreasonableness of the amount shown as consideration for the sale of the rubber trees, that the trees are capable of being tapped for two or three years more, etc., and how the parties acted under it ?"The High Court declined to answer questions Nos. 1 and 2, and on the third question the High Court recorded an answer in the negative. With special leave granted by this court, the assessee has appealed to this court2. The frame of the third question answered by the High Court is open to grave objection. There was no finding by the Tribunal that there were any attendant circumstances which indicated that the agreement did not record the covenant relating to the cutting of the trees and was intended to camouflage a grant of rights to tap latex from standing rubber trees. It was urged before the Tribunal that the wording of the agreement dated February 19, 1962, alone could not " be a criterion in deciding whether the actual intention was to cut and remove the trees or to subject the trees to slaughter tapping and remove the trees after so tapping them ". Counsel for the State had invited the attention of the Tribunal that the consideration fixed was also consistent with the agreement being one of a grant of a right to tap and not sale of trees. The Tribunal, however, held that " no extraneous motives could be imported into the terms of the agreement ". They observed that the agreement was one for sale of rubber trees and the sale proceeds of the rubber trees was a capital receipt. The question referred to the High Court could only arise out of the order of the Tribunal. The assumption made in the third question that in fact there were attendant circumstances like " unreasonableness of the time allowed for cutting and removing the trees ", the unreasonableness of the amount shown as consideration for the sale of the rubber trees, and " that the trees are capable of being tapped for two or three years more ", were not founded on any decision of the Tribunal. The jurisdiction which the High Court was exercising was purely advisory. The High Court could answer a question of law which arose out of the order of the Tribunal. The High Court apparently assumed certain facts which are not shown to have been determined by the Tribunal and, on the assumption that those facts existed, the High Court has held that the agreement was not one which represented the true bargain between the parties. The High Court observed that it is open to a Tribunal to find on proper evidence that the agreement purporting to embody a transaction does not represent the real bargain, or any bargain, between the parties. That observation is unexceptionable. But the High Court was in error in observing that the Appellate Tribunal had held that the revenue was not entitled to go behind the document and determine the true legal character of the transaction on a consideration of extraneous evidence. The Tribunal did not say that it was not competent to determine the true intention of the parties camouflaged by false recitals. The Tribunal merely held that the covenants in the agreement represented a genuine bargain between the parties and on the effect of those covenants it had to determine the true relationship, and the true relationship was one of vendor and purchaser and not of lessor and lesseeIn that view of the case, we are unable to uphold the judgment of the High Court recording an answer in the negative on the third question. We are of the view that the third question did not arise out of the order of the Tribunal and the High Court should have declined to answer that question3.
### Response:
1
### Explanation:
There was no finding by the Tribunal that there were any attendant circumstances which indicated that the agreement did not record the covenant relating to the cutting of the trees and was intended to camouflage a grant of rights to tap latex from standing rubber trees. It was urged before the Tribunal that the wording of the agreement dated February 19, 1962, alone could not " be a criterion in deciding whether the actual intention was to cut and remove the trees or to subject the trees to slaughter tapping and remove the trees after so tapping them ". Counsel for the State had invited the attention of the Tribunal that the consideration fixed was also consistent with the agreement being one of a grant of a right to tap and not sale of trees. The Tribunal, however, held that " no extraneous motives could be imported into the terms of the agreement ". They observed that the agreement was one for sale of rubber trees and the sale proceeds of the rubber trees was a capital receipt. The question referred to the High Court could only arise out of the order of the Tribunal. The assumption made in the third question that in fact there were attendant circumstances like " unreasonableness of the time allowed for cutting and removing the trees ", the unreasonableness of the amount shown as consideration for the sale of the rubber trees, and " that the trees are capable of being tapped for two or three years more ", were not founded on any decision of the Tribunal. The jurisdiction which the High Court was exercising was purely advisory. The High Court could answer a question of law which arose out of the order of the Tribunal. The High Court apparently assumed certain facts which are not shown to have been determined by the Tribunal and, on the assumption that those facts existed, the High Court has held that the agreement was not one which represented the true bargain between the parties. The High Court observed that it is open to a Tribunal to find on proper evidence that the agreement purporting to embody a transaction does not represent the real bargain, or any bargain, between the parties. That observation is unexceptionable. But the High Court was in error in observing that the Appellate Tribunal had held that the revenue was not entitled to go behind the document and determine the true legal character of the transaction on a consideration of extraneous evidence. The Tribunal did not say that it was not competent to determine the true intention of the parties camouflaged by false recitals. The Tribunal merely held that the covenants in the agreement represented a genuine bargain between the parties and on the effect of those covenants it had to determine the true relationship, and the true relationship was one of vendor and purchaser and not of lessor and lesseeIn that view of the case, we are unable to uphold the judgment of the High Court recording an answer in the negative on the third question. We are of the view that the third question did not arise out of the order of the Tribunal and the High Court should have declined to answer that question
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Baidyanath Ayurveda Bhawan Mazdoor Union, Patna Vs. Management of Shri Baidyanath Ayurveda Bhawan Private Limited and LRs | RANGANATH MISRA, J.1. This appeal by special leave is directed against the decision of the Patna High Court quashing an award of the Industrial Tribunal of Bihar in exercise of jurisdiction under Article 227 of the Constitution and the workmens union has carried the appeal.2. Two disputes were referred to adjudication under section 10 of the Industrial Disputes Act but the appeal is confined to only one, viz.,"whether the workmen are entitled to payment of bonus for the year 1966-67 under the Payment of Bonus Act over and above the `attendance bonus which is being paid in this establishment? If so, what should be the quantum of bonus?"The Tribunal found that the workmen were entitled to attendance bonus over and above the bonus payable under the Payment of Bonus Act, 1965 (`Act for short), and specified the amount as required under the reference. The employer challenged the Award before the High Court and contended that no separate attendance bonus was payable when bonus was being paid under the Act. A Division Bench of the High Court came to hold, concurring with the Tribunal, that the workmen in the establishment had been receiving attendance bonus from before and proceeded to examine whether such attendance bonus was included in the bonus payable to the workmen under the Act or could be claimed over and above the statutory bonus. Relying on the observations of this Court in Sanghi Jeevaraj Ghewar Chand &Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union &Anr.(1), the Court came to the conclusion that the workmen were not entitled to payment of attendance bonus for the year 1966-67 and accordingly vacated the Award.3. In Ghewar Chands case (supra) as rightly observed by the High Court the question for consideration was not whether after the Act came into force and statutory bonus became payable, other types of bonus hitherto paid ceased to be payable. On the other hand, in a later case Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai &Ors.(2). this Court considered the question directly. The later case also referred to Ghewar Chands case and ultimately held:"It is clear further from the long title of the Bonus Act of 1965 that it seeks to provide for bonus to persons employed `in certain establishments not in all establishments. Moreover, customary bonus does not require calculation of profits, available surplus, because it is a payment founded on long usage and justified often by spending on festivals and the Act gives no guidance to fix the quantum of festival bonus; nor does it expressly wish such a usage. The conclusion seems to be fairly clear, unless we strain judicial sympathy contrariwise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus."Referring to Ghewar Chands case, Krishna Iyer, J. in this latter case indicated:"...so viewed, we are able to discern no impediment in reading Ghewar Chand as confined to profit-bonus, leaving room for non-statutory play of customary bonus. The case dealt with a bonus claim by two sets of workmen, based on profit of the business but the workmen fell outside the ambit of the legislation by express exclusion or exemption. Nothing relating to any other type of bonus arose and cannot be impliedly held to have been decided. The governing principle we have to appreciate as a key to the understanding of Ghewar Chand is that it relates to a case of profit bonus urged under the Industrial Disputes Act by two sets of workmen, employed by establishment s which are either excluded or exempted from the Bonus Act. The major inarticulate premise of the statute is that it deals with-and only with-profit-based bonus as has been explained at some length earlier. There is no categorical provision in the Bonus Act nullifying all other kinds of bonus, nor does such a conclusion arise by necessary implication, The ruling undoubtedly lays down the law thus:`Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act or other corresponding law.But this statement, contextually construed, means that profit-bonus not founded on the provisions of the Bonus Act and by resort to an adventure in industrial dispute under the Industrial Disputes Act is no long er permissible. When Parliament has expressly excluded or exempted certain categories from the Bonus Act, they are bowled out so far as profit-based bonus is concerned. You cannot resurrect profit-bonus by a back door method, viz., resort to the machinery of the Industrial Disputes Act."4. Upon a further analysis of Ghewar Chands case. Iyer, J. concluded by saying:"A discerning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus."We concur with this conclusion.5. On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was not right in vacating the Award. The appeal must succeed and the award on this score has to be restored. If the employer had not challenged the Award, the workmen would have had the benefit of the bonus more than a decade back. That justifies awarding of interest. Whil | 1[ds]On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was not right in vacating the Award. The appeal must succeed and the award on this score has to be restored. If the employer had not challenged the Award, the workmen would have had the benefit of the bonus more than a decade back. That justifies awarding of interest. While allowing the appeal of the workmen with costs, we direct that the amount found by the Tribunal for being given as attendance bonus shall carry interest at the rate of 9% per annum from the due date till disbursement. | 1 | 1,076 | 133 | ### 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:
RANGANATH MISRA, J.1. This appeal by special leave is directed against the decision of the Patna High Court quashing an award of the Industrial Tribunal of Bihar in exercise of jurisdiction under Article 227 of the Constitution and the workmens union has carried the appeal.2. Two disputes were referred to adjudication under section 10 of the Industrial Disputes Act but the appeal is confined to only one, viz.,"whether the workmen are entitled to payment of bonus for the year 1966-67 under the Payment of Bonus Act over and above the `attendance bonus which is being paid in this establishment? If so, what should be the quantum of bonus?"The Tribunal found that the workmen were entitled to attendance bonus over and above the bonus payable under the Payment of Bonus Act, 1965 (`Act for short), and specified the amount as required under the reference. The employer challenged the Award before the High Court and contended that no separate attendance bonus was payable when bonus was being paid under the Act. A Division Bench of the High Court came to hold, concurring with the Tribunal, that the workmen in the establishment had been receiving attendance bonus from before and proceeded to examine whether such attendance bonus was included in the bonus payable to the workmen under the Act or could be claimed over and above the statutory bonus. Relying on the observations of this Court in Sanghi Jeevaraj Ghewar Chand &Ors. v. Secretary, Madras Chillies, Grains Kirana Merchants Workers Union &Anr.(1), the Court came to the conclusion that the workmen were not entitled to payment of attendance bonus for the year 1966-67 and accordingly vacated the Award.3. In Ghewar Chands case (supra) as rightly observed by the High Court the question for consideration was not whether after the Act came into force and statutory bonus became payable, other types of bonus hitherto paid ceased to be payable. On the other hand, in a later case Mumbai Kamgar Sabha, Bombay v. M/s. Abdulbhai Faizullabhai &Ors.(2). this Court considered the question directly. The later case also referred to Ghewar Chands case and ultimately held:"It is clear further from the long title of the Bonus Act of 1965 that it seeks to provide for bonus to persons employed `in certain establishments not in all establishments. Moreover, customary bonus does not require calculation of profits, available surplus, because it is a payment founded on long usage and justified often by spending on festivals and the Act gives no guidance to fix the quantum of festival bonus; nor does it expressly wish such a usage. The conclusion seems to be fairly clear, unless we strain judicial sympathy contrariwise, that the Bonus Act dealt with only profit bonus and matters connected therewith and did not govern customary, traditional or contractual bonus."Referring to Ghewar Chands case, Krishna Iyer, J. in this latter case indicated:"...so viewed, we are able to discern no impediment in reading Ghewar Chand as confined to profit-bonus, leaving room for non-statutory play of customary bonus. The case dealt with a bonus claim by two sets of workmen, based on profit of the business but the workmen fell outside the ambit of the legislation by express exclusion or exemption. Nothing relating to any other type of bonus arose and cannot be impliedly held to have been decided. The governing principle we have to appreciate as a key to the understanding of Ghewar Chand is that it relates to a case of profit bonus urged under the Industrial Disputes Act by two sets of workmen, employed by establishment s which are either excluded or exempted from the Bonus Act. The major inarticulate premise of the statute is that it deals with-and only with-profit-based bonus as has been explained at some length earlier. There is no categorical provision in the Bonus Act nullifying all other kinds of bonus, nor does such a conclusion arise by necessary implication, The ruling undoubtedly lays down the law thus:`Considering the history of the legislation, the background and the circumstances in which the Act was enacted, the object of the Act and its scheme, it is not possible to accept the construction suggested on behalf of the respondents that the Act is not an exhaustive Act dealing comprehensively with the subject-matter of bonus in all its aspects or that Parliament still left it open to those to whom the Act does not apply by reason of its provisions either as to exclusion or exemption to raise a dispute with regard to bonus through industrial adjudication under the Industrial Disputes Act or other corresponding law.But this statement, contextually construed, means that profit-bonus not founded on the provisions of the Bonus Act and by resort to an adventure in industrial dispute under the Industrial Disputes Act is no long er permissible. When Parliament has expressly excluded or exempted certain categories from the Bonus Act, they are bowled out so far as profit-based bonus is concerned. You cannot resurrect profit-bonus by a back door method, viz., resort to the machinery of the Industrial Disputes Act."4. Upon a further analysis of Ghewar Chands case. Iyer, J. concluded by saying:"A discerning and concrete analysis of the scheme of the Act and the reasoning of the Court leaves us in no doubt that it leaves untouched customary bonus."We concur with this conclusion.5. On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was not right in vacating the Award. The appeal must succeed and the award on this score has to be restored. If the employer had not challenged the Award, the workmen would have had the benefit of the bonus more than a decade back. That justifies awarding of interest. Whil
### Response:
1
### Explanation:
On the finding by the Tribunal as also the High Court that attendance bonus was being paid from before and it being outside the purview of the Act, the High Court was not right in vacating the Award. The appeal must succeed and the award on this score has to be restored. If the employer had not challenged the Award, the workmen would have had the benefit of the bonus more than a decade back. That justifies awarding of interest. While allowing the appeal of the workmen with costs, we direct that the amount found by the Tribunal for being given as attendance bonus shall carry interest at the rate of 9% per annum from the due date till disbursement.
|
Divisional Manager, Plantation Division, Andaman and Nicobar Islands Vs. Munnu Barrick and Ors | appeared for the respondents despite service of notice. 13. Domestic enquiry in an industrial establishment is governed by the Standing Orders applicable thereto. The employer, if it is a government company, or a society registered under the Societies Registration Act can also frame its rules and regulations governing the conditions of service of its employees, domestic enquiry is required to be conducted in terms of such rules and regulations. 14. From a perusal of the award passed by the Presiding Officer, Labour Court, it does not appear that the workmen had raised any contention as regards violation of any mandatory provision of such rules laying down the procedure for conducting departmental proceedings. Indisputably, however, the principles of natural justice in such a proceeding are required to be complied with. 15. In law, the concerned workmen do not enjoy any status as they are not the employees of Union of India and furthermore, their conditions of service, were not governed by any rule made under Article 309 of the Constitution. Services of the workmen were also not protected under Article 311 thereof. It has been contended before us that in terms of the extant rules governing the conditions of service of the workmen, a departmental appeal was maintainable against an order of the Disciplinary Authority. Presumably, such a remedy was provided with a view to enable the workmen to prefer an effective departmental appeal and only in that view of the matter, a copy of the enquiry report was supplied by the Appellant along with the order of the dismissal. 16. The workmen evidently did not avail the benefit of filing any departmental appeal. In such an appeal they could have shown as to how and in what manner and to what extent they were prejudiced by non-supply of a copy of the enquiry report. Had the workmen filed such an appeal, they could have furthermore demonstrated before the Appellate Authority that in terms of the rules and regulations governing their conditions of service, they were, as a matter of right, entitled to a copy of the enquiry report before an order of punishment is imposed upon them. 17. The principles of natural justice cannot be put in a strait-jacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it, (See Bar Council of India vs. High Court of Kerala, (2004) 6 SCC 311 ). 18. The Presiding Officer, Labour Court, as noticed hereinbefore, committed a manifest error in invoking Article 311 of the Constitution of India in the instant case. 19. In Karunakar (supra), this Court has clearly held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report. 20. This Court in Canara Bank (supra) while following Karunakar (supra) held: "19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 21. Referring to a large number of decisions, it was observed that a court will refrain from interfering with an order, having regard to useless formality theory, in a given case. It was opined: "27. It is to be noted that at no stage the employee pleaded prejudice. Both learned Single Judge and the Division Bench proceeded on the basis that there was no compliance of the requirement of Regulation 6(18) and, therefore, prejudice was caused. In view of the finding recorded supra that Regulation 6(18) has not been correctly interpreted, the conclusions regarding prejudice are indefensible." 22. The learned Single Judge of the High Court, therefore, in our opinion, seriously erred in not considering the matter from the aforementioned angle. Furthermore, in view of the submissions made on behalf of the Appellant herein, the court should have given an opportunity to complete the disciplinary proceeding from the stage of supplying a copy of the enquiry report to the workmen so as to enable them to raise a contention as regard correctness of the findings of the Inquiry Officer contained in the report as also on the quantum of punishment proposed to be imposed by the Appellant while issuing a second show cause notice. 23. In a case of this nature where serious questions of law were raised by the Appellant, in our opinion, the Division Bench of the High Court should have taken a liberal view on the application for condonation of delay filed by the Appellant wherefor the Respondents workmen could have been adequately compensated on monetary terms. 24. Ordinarily, we have remitted the matter back to the Division Bench for consideration of the matter on merit but as we are satisfied that the learned Single Judge of the High Court as well as the Presiding Officer, Labour Court have seriously erred in passing the impugned award and judgments, with a view to do complete justice to the parties we are of the view that all the impugned judgments and orders should be set aside and the matter remitted to the Presiding Officer, Labour Court for consideration of the matter afresh. | 1[ds]14. From a perusal of the award passed by the Presiding Officer, Labour Court, it does not appear that the workmen had raised any contention as regards violation of any mandatory provision of such rules laying down the procedure for conducting departmental proceedings. Indisputably, however, the principles of natural justice in such a proceeding are required to be complied with15. In law, the concerned workmen do not enjoy any status as they are not the employees of Union of India and furthermore, their conditions of service, were not governed by any rule made under Article 309 of the Constitution. Services of the workmen were also not protected under Article 311 thereof. It has been contended before us that in terms of the extant rules governing the conditions of service of the workmen, a departmental appeal was maintainable against an order of the Disciplinary Authority. Presumably, such a remedy was provided with a view to enable the workmen to prefer an effective departmental appeal and only in that view of the matter, a copy of the enquiry report was supplied by the Appellant along with the order of the dismissal16. The workmen evidently did not avail the benefit of filing any departmental appeal. In such an appeal they could have shown as to how and in what manner and to what extent they were prejudiced by non-supply of a copy of the enquiry report. Had the workmen filed such an appeal, they could have furthermore demonstrated before the Appellate Authority that in terms of the rules and regulations governing their conditions of service, they were, as a matter of right, entitled to a copy of the enquiry report before an order of punishment is imposed upon them. The principles of natural justice cannot be put in a strait-jacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it, (See Bar Council of India vs. High Court of Kerala, (2004) 6 SCC 311 )18. The Presiding Officer, Labour Court, as noticed hereinbefore, committed a manifest error in invoking Article 311 of the Constitution of India in the instant case22. The learned Single Judge of the High Court, therefore, in our opinion, seriously erred in not considering the matter from the aforementioned angle. Furthermore, in view of the submissions made on behalf of the Appellant herein, the court should have given an opportunity to complete the disciplinary proceeding from the stage of supplying a copy of the enquiry report to the workmen so as to enable them to raise a contention as regard correctness of the findings of the Inquiry Officer contained in the report as also on the quantum of punishment proposed to be imposed by the Appellant while issuing a second show cause notice23. In a case of this nature where serious questions of law were raised by the Appellant, in our opinion, the Division Bench of the High Court should have taken a liberal view on the application for condonation of delay filed by the Appellant wherefor the Respondents workmen could have been adequately compensated on monetary terms24. Ordinarily, we have remitted the matter back to the Division Bench for consideration of the matter on merit but as we are satisfied that the learned Single Judge of the High Court as well as the Presiding Officer, Labour Court have seriously erred in passing the impugned award and judgments, with a view to do complete justice to the parties we are of the view that all the impugned judgments and orders should be set aside and the matter remitted to the Presiding Officer, Labour Court for consideration of the matter afresh. | 1 | 2,268 | 690 | ### 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:
appeared for the respondents despite service of notice. 13. Domestic enquiry in an industrial establishment is governed by the Standing Orders applicable thereto. The employer, if it is a government company, or a society registered under the Societies Registration Act can also frame its rules and regulations governing the conditions of service of its employees, domestic enquiry is required to be conducted in terms of such rules and regulations. 14. From a perusal of the award passed by the Presiding Officer, Labour Court, it does not appear that the workmen had raised any contention as regards violation of any mandatory provision of such rules laying down the procedure for conducting departmental proceedings. Indisputably, however, the principles of natural justice in such a proceeding are required to be complied with. 15. In law, the concerned workmen do not enjoy any status as they are not the employees of Union of India and furthermore, their conditions of service, were not governed by any rule made under Article 309 of the Constitution. Services of the workmen were also not protected under Article 311 thereof. It has been contended before us that in terms of the extant rules governing the conditions of service of the workmen, a departmental appeal was maintainable against an order of the Disciplinary Authority. Presumably, such a remedy was provided with a view to enable the workmen to prefer an effective departmental appeal and only in that view of the matter, a copy of the enquiry report was supplied by the Appellant along with the order of the dismissal. 16. The workmen evidently did not avail the benefit of filing any departmental appeal. In such an appeal they could have shown as to how and in what manner and to what extent they were prejudiced by non-supply of a copy of the enquiry report. Had the workmen filed such an appeal, they could have furthermore demonstrated before the Appellate Authority that in terms of the rules and regulations governing their conditions of service, they were, as a matter of right, entitled to a copy of the enquiry report before an order of punishment is imposed upon them. 17. The principles of natural justice cannot be put in a strait-jacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it, (See Bar Council of India vs. High Court of Kerala, (2004) 6 SCC 311 ). 18. The Presiding Officer, Labour Court, as noticed hereinbefore, committed a manifest error in invoking Article 311 of the Constitution of India in the instant case. 19. In Karunakar (supra), this Court has clearly held that the employee must show sufferance of prejudice by non-obtaining a copy of the enquiry report. 20. This Court in Canara Bank (supra) while following Karunakar (supra) held: "19. Concept of natural justice has undergone a great deal of change in recent years. Rules of natural justice are not rules embodied always expressly in a statute or in rules framed thereunder. They may be implied from the nature of the duty to be performed under a statute. What particular rule of natural justice should be implied and what its context should be in a given case must depend to a great extent on the fact and circumstances of that case, the frame-work of the statute under which the enquiry is held. The old distinction between a judicial act and administrative act has withered away. Even an administrative order which involves civil consequences must be consistent with the rules of natural justice. The expression civil consequences encompasses infraction of not merely property or personal rights but of civil liberties, material deprivations, and non-pecuniary damages. In its wide umbrella comes everything that affects a citizen in his civil life." 21. Referring to a large number of decisions, it was observed that a court will refrain from interfering with an order, having regard to useless formality theory, in a given case. It was opined: "27. It is to be noted that at no stage the employee pleaded prejudice. Both learned Single Judge and the Division Bench proceeded on the basis that there was no compliance of the requirement of Regulation 6(18) and, therefore, prejudice was caused. In view of the finding recorded supra that Regulation 6(18) has not been correctly interpreted, the conclusions regarding prejudice are indefensible." 22. The learned Single Judge of the High Court, therefore, in our opinion, seriously erred in not considering the matter from the aforementioned angle. Furthermore, in view of the submissions made on behalf of the Appellant herein, the court should have given an opportunity to complete the disciplinary proceeding from the stage of supplying a copy of the enquiry report to the workmen so as to enable them to raise a contention as regard correctness of the findings of the Inquiry Officer contained in the report as also on the quantum of punishment proposed to be imposed by the Appellant while issuing a second show cause notice. 23. In a case of this nature where serious questions of law were raised by the Appellant, in our opinion, the Division Bench of the High Court should have taken a liberal view on the application for condonation of delay filed by the Appellant wherefor the Respondents workmen could have been adequately compensated on monetary terms. 24. Ordinarily, we have remitted the matter back to the Division Bench for consideration of the matter on merit but as we are satisfied that the learned Single Judge of the High Court as well as the Presiding Officer, Labour Court have seriously erred in passing the impugned award and judgments, with a view to do complete justice to the parties we are of the view that all the impugned judgments and orders should be set aside and the matter remitted to the Presiding Officer, Labour Court for consideration of the matter afresh.
### Response:
1
### Explanation:
14. From a perusal of the award passed by the Presiding Officer, Labour Court, it does not appear that the workmen had raised any contention as regards violation of any mandatory provision of such rules laying down the procedure for conducting departmental proceedings. Indisputably, however, the principles of natural justice in such a proceeding are required to be complied with15. In law, the concerned workmen do not enjoy any status as they are not the employees of Union of India and furthermore, their conditions of service, were not governed by any rule made under Article 309 of the Constitution. Services of the workmen were also not protected under Article 311 thereof. It has been contended before us that in terms of the extant rules governing the conditions of service of the workmen, a departmental appeal was maintainable against an order of the Disciplinary Authority. Presumably, such a remedy was provided with a view to enable the workmen to prefer an effective departmental appeal and only in that view of the matter, a copy of the enquiry report was supplied by the Appellant along with the order of the dismissal16. The workmen evidently did not avail the benefit of filing any departmental appeal. In such an appeal they could have shown as to how and in what manner and to what extent they were prejudiced by non-supply of a copy of the enquiry report. Had the workmen filed such an appeal, they could have furthermore demonstrated before the Appellate Authority that in terms of the rules and regulations governing their conditions of service, they were, as a matter of right, entitled to a copy of the enquiry report before an order of punishment is imposed upon them. The principles of natural justice cannot be put in a strait-jacket formula. It must be viewed with flexibility. In a given case, where a deviation takes place as regard compliance of the principles of natural justice, the Court may insist upon proof of prejudice before setting aside the order impugned before it, (See Bar Council of India vs. High Court of Kerala, (2004) 6 SCC 311 )18. The Presiding Officer, Labour Court, as noticed hereinbefore, committed a manifest error in invoking Article 311 of the Constitution of India in the instant case22. The learned Single Judge of the High Court, therefore, in our opinion, seriously erred in not considering the matter from the aforementioned angle. Furthermore, in view of the submissions made on behalf of the Appellant herein, the court should have given an opportunity to complete the disciplinary proceeding from the stage of supplying a copy of the enquiry report to the workmen so as to enable them to raise a contention as regard correctness of the findings of the Inquiry Officer contained in the report as also on the quantum of punishment proposed to be imposed by the Appellant while issuing a second show cause notice23. In a case of this nature where serious questions of law were raised by the Appellant, in our opinion, the Division Bench of the High Court should have taken a liberal view on the application for condonation of delay filed by the Appellant wherefor the Respondents workmen could have been adequately compensated on monetary terms24. Ordinarily, we have remitted the matter back to the Division Bench for consideration of the matter on merit but as we are satisfied that the learned Single Judge of the High Court as well as the Presiding Officer, Labour Court have seriously erred in passing the impugned award and judgments, with a view to do complete justice to the parties we are of the view that all the impugned judgments and orders should be set aside and the matter remitted to the Presiding Officer, Labour Court for consideration of the matter afresh.
|
Ashok Chaturvedi Vs. Shitul H Chanchani | the High Court committed serious error in not quashing the cognizance merely because there is an allegation of forgery and being of the opinion that the same could be substantiated only during trial. Mr Desai also contended that in a compnay having share capital of 5 crores of 50 lakh shares of Rs. 10/- each at the point when the alleged transfer of shares of the complainant took place, it is unimaginable that the 100 equity shares of the complainant could be transferred against the wishes of the complainant at the connivance of the Director to the Company. Mr. Desai also contended that the dispute, if at all any, is a dispute of civil nature and the complainant himself has already filed a claim petition before the Consumer Forum and the criminal proceedings, therefore, cannot be permitted to be continued as that would amount to an abuse of the process of Court. The learned Counsel appearing for the complaintant-respondent on the other hand contended that on the materials on record, the the High Court was fully justified in coming to the conclusion that a prima facie case has been made out, and therefore, it is not a fit case for quashing the order of cognizance in exercise of the inherent jurisdiction of the Court under Section 482 of the Code which has to be exercised sparingly and only when a conclusion is arrived at that non-exercise of the power would ultimately lead to abuse of the process of court. 3. Having examined the rival submissions and the averments made in the petition of complaint as well as the evidence of the complainant and the witnesses before the Magistrate, we are not in a position to accept Mr. Desais contention that dispute essentially is a civil dispute, and therefore, the order of cognizance should be quashed. A mere filing of a claim before the Consumer Forum could not make the dispute a civil dispute. The aforesaid submission of Mr. Desai has to be rejected.4. But the question yet remains for consideration is whether the allegations made in the petition of complainat together with statements made by the complainant and the witnesses before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of ? The learned Counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and, therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of carges as provided in Section 245 of the Criminal Procedure Code he is debarred from aproaching the Court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of Court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under Section 482 of the Code, we have examined the allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.1996 taking cognizance of the offence as against the appellants stand quashed.5. It is true that out of 9 officials of the company who are the accused persons in the criminal case only 7 of them have preferred this special leave petition and R.K. Sharma, Whole Time Director, as well as Capt. G.P.S. Choudhary, Director of the Company have not preferred the special leave petition. But in view of our conclusion, allegations in the complaint petition do not make out any offence against any of the officers of the company it would be futile to allow continuance of the criminal proceedings so far as the said two officers of the company are concerned. | 1[ds]We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in theallegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 andof the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.1996 taking cognizance of the offence as against the appellants stand quashed.5. It is true that out of 9 officials of the company who are the accused persons in the criminal case only 7 of them have preferred this special leave petition and R.K. Sharma, Whole Time Director, as well as Capt. G.P.S. Choudhary, Director of the Company have not preferred the special leave petition. But in view of our conclusion, allegations in the complaint petition do not make out any offence against any of the officers of the company it would be futile to allow continuance of the criminal proceedings so far as the said two officers of the company are concerned. | 1 | 1,384 | 358 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
the High Court committed serious error in not quashing the cognizance merely because there is an allegation of forgery and being of the opinion that the same could be substantiated only during trial. Mr Desai also contended that in a compnay having share capital of 5 crores of 50 lakh shares of Rs. 10/- each at the point when the alleged transfer of shares of the complainant took place, it is unimaginable that the 100 equity shares of the complainant could be transferred against the wishes of the complainant at the connivance of the Director to the Company. Mr. Desai also contended that the dispute, if at all any, is a dispute of civil nature and the complainant himself has already filed a claim petition before the Consumer Forum and the criminal proceedings, therefore, cannot be permitted to be continued as that would amount to an abuse of the process of Court. The learned Counsel appearing for the complaintant-respondent on the other hand contended that on the materials on record, the the High Court was fully justified in coming to the conclusion that a prima facie case has been made out, and therefore, it is not a fit case for quashing the order of cognizance in exercise of the inherent jurisdiction of the Court under Section 482 of the Code which has to be exercised sparingly and only when a conclusion is arrived at that non-exercise of the power would ultimately lead to abuse of the process of court. 3. Having examined the rival submissions and the averments made in the petition of complaint as well as the evidence of the complainant and the witnesses before the Magistrate, we are not in a position to accept Mr. Desais contention that dispute essentially is a civil dispute, and therefore, the order of cognizance should be quashed. A mere filing of a claim before the Consumer Forum could not make the dispute a civil dispute. The aforesaid submission of Mr. Desai has to be rejected.4. But the question yet remains for consideration is whether the allegations made in the petition of complainat together with statements made by the complainant and the witnesses before the Magistrate taken on their face value, do make the offence for which the Magistrate has taken cognizance of ? The learned Counsel for the respondent in this connection had urged that the accused had a right to put this argument at the time of framing of charges, and, therefore, this Court should not interfere with the order of Magistrate taking cognizance, at this stage. This argument, however, does not appeal to us inasmuch as merely because an accused has a right to plead at the time of framing of charges that there is no sufficient material for such framing of carges as provided in Section 245 of the Criminal Procedure Code he is debarred from aproaching the Court even at an earliest point of time when the Magistrate takes cognizance of the offence and summons the accused to appear to contend that the very issuance of the order of taking cognizance is invalid on the ground that no offence can be said to have been made out on the allegations made in the complaint petition. It has been held in a number of cases that power under Section 482 has to be exercised sparingly and in the interest of justice. But allowing the criminal proceeding to continue even where the allegations in the complaint petition do not make out any offence would be tantamount to an abuse of the process of Court, and therefore, there cannot be any dispute that in such case power under Section 482 of the Code can be exercised. Bearing in mind the parameters laid down by this Court in several decisions for exercise of power under Section 482 of the Code, we have examined the allegations made in the complaint petition and the statement of the complainant and the two other witnesses made on oath before the Magistrate. We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in the so-called allegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 and 120-B of the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.1996 taking cognizance of the offence as against the appellants stand quashed.5. It is true that out of 9 officials of the company who are the accused persons in the criminal case only 7 of them have preferred this special leave petition and R.K. Sharma, Whole Time Director, as well as Capt. G.P.S. Choudhary, Director of the Company have not preferred the special leave petition. But in view of our conclusion, allegations in the complaint petition do not make out any offence against any of the officers of the company it would be futile to allow continuance of the criminal proceedings so far as the said two officers of the company are concerned.
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1
### Explanation:
We are clearly of the opinion that the necessary ingredients of any of the offence have not been made out so far as the appellants are concerned. The petition of complaint is a vague one and excepting the bald allegation that the shares of the complainant have been transferred on the forged signatures, nothing further has been stated and there is not an iota of material to indicate how all or any of these appellants are involved in theallegation of forgery. The statement of the complainant on oath as well as his witnesses do not improve the position in any manner, and therefore, in our considered opinion even if the allegations made in the complaint petition and the statement of complainant and his witnesses are taken on their face value, the offence under Sections 406, 420, 467, 468 andof the Indian Penal Code cannot be said to have been made out. This being the position the impugned order of the Magistrate taking cognizance of the offence dated 5.2.1996 so far as it relates the appellants are concerned cannot be sustained and the High Court also committed error in not invoking its power under Section 482 of the Code. In the aforesaid premises, the impugned order of the High Court as well as the order of the Magistrate dated 5.2.1996 taking cognizance of the offence as against the appellants stand quashed.5. It is true that out of 9 officials of the company who are the accused persons in the criminal case only 7 of them have preferred this special leave petition and R.K. Sharma, Whole Time Director, as well as Capt. G.P.S. Choudhary, Director of the Company have not preferred the special leave petition. But in view of our conclusion, allegations in the complaint petition do not make out any offence against any of the officers of the company it would be futile to allow continuance of the criminal proceedings so far as the said two officers of the company are concerned.
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Commnr.Of Wealth Tax, Hyderabad Vs. Trustees Of Heh | 9 of the judgment. 24. The question as to whether the Valuation Officer is bound by Rule 1 -D or not was answered in the affirmative. 25. As regards the question as to whether the application of the break-up method in Rule 1-D means that the capital gains tax, which would be payable in case the said shares are sold on the valuation date, is liable to be deducted from the market value determined, it was held: “The contention of the learned counsel, in this behalf, is rather involved if not obscure. The argument runs thus: Section 7)(1) says that the value of an asset shall be the price which such asset would fetch if sold in the open market on the valuation date. In other words, the sub-section creates a fiction of sale of such asset on the valuation date for the purpose of determining its market value. Once a fiction is created, it must be carried to its logical extent and the Court should not allow its ima gination to be boggled by any other considerations. If an asset is sold, it would be subject to capital gains tax. For finding out the net wealth received in the hands of assessee, one must necessarily deduct the capital gains tax. Then alone one can arrive at the net price which the assessee will receive - and that should be the market value. We must say that the entire argument is misplaced. There is no sale of the asset and there is no question of capital gains tax being attracted or being paid. For the purpose of determining the market value, the sub-section says that the Wealth Tax Officer shall make an estimate of the price which the asset would fetch if sold in the open market on the valuation date. The sub-section speaks of the market value of the asset and not the net income or the net price received by the assessee. This is not a case where a fiction is created by Parliament. It is only a case of prescribing the basis of determination of market value. On the same reasoning, it must be held t hat no other amounts like provision for taxation, provident fund and gratuity etc. can be deducted. The contention of the learned counsel for the assessees is, therefore, wholly unacceptable.” 26. This Court in that case was concerned with the applicability of Rule 1-D of the Wealth Tax Rules, 1957 which lays down the criteria for determining the valuation of shares. 27. Explanation II appended to Rule 1-D is as under: “Explanation II : For the purposes of this Rule -(i) the following amounts shown as assets in the balance-sheet shall not be treated as assets, namely -(a) any amount paid as advance tax under Section 18-A of the Indian Income Tax Act, 1922 (11 of 1922), or under Section 210 of the Income Tax Act, 1961 (43 of 1961).(b) any amount shown in the balance-sheet including the debit balance of the profit and loss account or the profit and loss appropriation account which does not represent the value of any asset;(ii) the following amounts shown as liabilities in the balance-sheet shall not be treated as liabilities, namely-(a) the paid-up capital in respect of equity shares;(b) the amount set apart from payment of dividends on preference shares and equity shares where such dividends have not been declared before the valuation date at a general body meeting of the company;(c) reserves, by whatever name called, other than those set apart towards depreciation;(d) credit balance of the profit and loss account;(e) any amount representing provision for taxation (other than the amount referred to in clause (i)(a)) to the extent of the excess over the tax payable with reference to the book profits in accordance with the law applicable thereto;(f) any amount representing contingent liabilities other than arrears of dividends payable in respect of cumulative preference shares.”28. The following principles emerge from the said decision: (a) What is relevant is the market value of the shares i.e. what sale price the shares would fetch if sold in the open market on the valuation date.(b) There is no legal fiction of sale created by Parliament; and therefore no deemed capital gains tax on sale is to be considered.(c) The next realization by the assessee after meeting expenses is not material. 29. It is very important to note that this judgment was not concerned with what price a buyer would offer for the shares on the valuation date but only whether the seller can claim certain deductions from the price which the buyer would be willing to offer. In this case, however, this Court is only concerned what price the buyer would offer for the interest of the remainderman.30. There cannot be any doubt or dispute that the question as regards capital gains liability will not affect the value of the shares or land inasmuch the same is incurred by the seller. In such an event, therefore, the price which the buyer would be prepared to offer would not be affected by the seller’s capital gains liability or any the expenses which may be incurred by him. On the other hand, the estate duty payable by the trustees on the termination of the life interest would be a relevant factor for determination of the price which a willing and informed buyer would offer for purchase of the remainder interest. The remainder interest is merely the right of the remainderman to receive an amount from the trustees on the termination of the life interest of the life tenant, the purchaser, therefore, would take into consideration any factor which would potentially reduce the amount that the would ultimately receive from the trustees towards his remainder interest. The risk or hazard of estate duty liability will have a direct impact on the purchaser of the remainder interest and, thus, will be a relevant factor for the purpose of determination of valuation of the interest to be held by the remainderman. | 1[ds]e question, therefore, must be answered having regard to the relevant provisions of the Wealth Tax Actthe Estate Dutyis not in dispute that on the death of holder of thethe provisions ofthe Estate DutyAct would be applicable. The estate duty so determined in terms of(2) of Section 74 of the Act shall be the first charge on such interest.14. There cannot, therefore be any doubt or dispute that the position has to be evaluated having regard to the value of the assets assessable at each relevant date. It is further not in doubt or dispute that the value of the jewelleries would be be the price which a willing or informed buyer would offer therefor. As arrears of the estate duty would be a charge on the property, the same beingthe potential estate duty liability shall be a relevant factor while determining the market value of the jewelleries. Whenever there is a charge or encumbrance in the property, the right of a seller to sell the same would be subject to such charge. The restrictions and disadvantages attached to the right of the assessee would indisputably diminish the value of the property to the said extent.It is very important to note that this judgment was not concerned with what price a buyer would offer for the shares on the valuation date but only whether the seller can claim certain deductions from the price which the buyer would be willing to offer. In this case, however, this Court is only concerned what price the buyer would offer for the interest of the remainderman.30. There cannot be any doubt or dispute that the question as regards capital gains liability will not affect the value of the shares or land inasmuch the same is incurred by the seller. In such an event, therefore, the price which the buyer would be prepared to offer would not be affected by thecapital gains liability or any the expenses which may be incurred by him. On the other hand, the estate duty payable by the trustees on the termination of the life interest would be a relevant factor for determination of the price which a willing and informed buyer would offer for purchase of the remainder interest. The remainder interest is merely the right of the remainderman to receive an amount from the trustees on the termination of the life interest of the life tenant, the purchaser, therefore, would take into consideration any factor which would potentially reduce the amount that the would ultimately receive from the trustees towards his remainder interest. The risk or hazard of estate duty liability will have a direct impact on the purchaser of the remainder interest and, thus, will be a relevant factor for the purpose of determination of valuation of the interest to be held by the remainderman. | 1 | 5,632 | 505 | ### 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:
9 of the judgment. 24. The question as to whether the Valuation Officer is bound by Rule 1 -D or not was answered in the affirmative. 25. As regards the question as to whether the application of the break-up method in Rule 1-D means that the capital gains tax, which would be payable in case the said shares are sold on the valuation date, is liable to be deducted from the market value determined, it was held: “The contention of the learned counsel, in this behalf, is rather involved if not obscure. The argument runs thus: Section 7)(1) says that the value of an asset shall be the price which such asset would fetch if sold in the open market on the valuation date. In other words, the sub-section creates a fiction of sale of such asset on the valuation date for the purpose of determining its market value. Once a fiction is created, it must be carried to its logical extent and the Court should not allow its ima gination to be boggled by any other considerations. If an asset is sold, it would be subject to capital gains tax. For finding out the net wealth received in the hands of assessee, one must necessarily deduct the capital gains tax. Then alone one can arrive at the net price which the assessee will receive - and that should be the market value. We must say that the entire argument is misplaced. There is no sale of the asset and there is no question of capital gains tax being attracted or being paid. For the purpose of determining the market value, the sub-section says that the Wealth Tax Officer shall make an estimate of the price which the asset would fetch if sold in the open market on the valuation date. The sub-section speaks of the market value of the asset and not the net income or the net price received by the assessee. This is not a case where a fiction is created by Parliament. It is only a case of prescribing the basis of determination of market value. On the same reasoning, it must be held t hat no other amounts like provision for taxation, provident fund and gratuity etc. can be deducted. The contention of the learned counsel for the assessees is, therefore, wholly unacceptable.” 26. This Court in that case was concerned with the applicability of Rule 1-D of the Wealth Tax Rules, 1957 which lays down the criteria for determining the valuation of shares. 27. Explanation II appended to Rule 1-D is as under: “Explanation II : For the purposes of this Rule -(i) the following amounts shown as assets in the balance-sheet shall not be treated as assets, namely -(a) any amount paid as advance tax under Section 18-A of the Indian Income Tax Act, 1922 (11 of 1922), or under Section 210 of the Income Tax Act, 1961 (43 of 1961).(b) any amount shown in the balance-sheet including the debit balance of the profit and loss account or the profit and loss appropriation account which does not represent the value of any asset;(ii) the following amounts shown as liabilities in the balance-sheet shall not be treated as liabilities, namely-(a) the paid-up capital in respect of equity shares;(b) the amount set apart from payment of dividends on preference shares and equity shares where such dividends have not been declared before the valuation date at a general body meeting of the company;(c) reserves, by whatever name called, other than those set apart towards depreciation;(d) credit balance of the profit and loss account;(e) any amount representing provision for taxation (other than the amount referred to in clause (i)(a)) to the extent of the excess over the tax payable with reference to the book profits in accordance with the law applicable thereto;(f) any amount representing contingent liabilities other than arrears of dividends payable in respect of cumulative preference shares.”28. The following principles emerge from the said decision: (a) What is relevant is the market value of the shares i.e. what sale price the shares would fetch if sold in the open market on the valuation date.(b) There is no legal fiction of sale created by Parliament; and therefore no deemed capital gains tax on sale is to be considered.(c) The next realization by the assessee after meeting expenses is not material. 29. It is very important to note that this judgment was not concerned with what price a buyer would offer for the shares on the valuation date but only whether the seller can claim certain deductions from the price which the buyer would be willing to offer. In this case, however, this Court is only concerned what price the buyer would offer for the interest of the remainderman.30. There cannot be any doubt or dispute that the question as regards capital gains liability will not affect the value of the shares or land inasmuch the same is incurred by the seller. In such an event, therefore, the price which the buyer would be prepared to offer would not be affected by the seller’s capital gains liability or any the expenses which may be incurred by him. On the other hand, the estate duty payable by the trustees on the termination of the life interest would be a relevant factor for determination of the price which a willing and informed buyer would offer for purchase of the remainder interest. The remainder interest is merely the right of the remainderman to receive an amount from the trustees on the termination of the life interest of the life tenant, the purchaser, therefore, would take into consideration any factor which would potentially reduce the amount that the would ultimately receive from the trustees towards his remainder interest. The risk or hazard of estate duty liability will have a direct impact on the purchaser of the remainder interest and, thus, will be a relevant factor for the purpose of determination of valuation of the interest to be held by the remainderman.
### Response:
1
### Explanation:
e question, therefore, must be answered having regard to the relevant provisions of the Wealth Tax Actthe Estate Dutyis not in dispute that on the death of holder of thethe provisions ofthe Estate DutyAct would be applicable. The estate duty so determined in terms of(2) of Section 74 of the Act shall be the first charge on such interest.14. There cannot, therefore be any doubt or dispute that the position has to be evaluated having regard to the value of the assets assessable at each relevant date. It is further not in doubt or dispute that the value of the jewelleries would be be the price which a willing or informed buyer would offer therefor. As arrears of the estate duty would be a charge on the property, the same beingthe potential estate duty liability shall be a relevant factor while determining the market value of the jewelleries. Whenever there is a charge or encumbrance in the property, the right of a seller to sell the same would be subject to such charge. The restrictions and disadvantages attached to the right of the assessee would indisputably diminish the value of the property to the said extent.It is very important to note that this judgment was not concerned with what price a buyer would offer for the shares on the valuation date but only whether the seller can claim certain deductions from the price which the buyer would be willing to offer. In this case, however, this Court is only concerned what price the buyer would offer for the interest of the remainderman.30. There cannot be any doubt or dispute that the question as regards capital gains liability will not affect the value of the shares or land inasmuch the same is incurred by the seller. In such an event, therefore, the price which the buyer would be prepared to offer would not be affected by thecapital gains liability or any the expenses which may be incurred by him. On the other hand, the estate duty payable by the trustees on the termination of the life interest would be a relevant factor for determination of the price which a willing and informed buyer would offer for purchase of the remainder interest. The remainder interest is merely the right of the remainderman to receive an amount from the trustees on the termination of the life interest of the life tenant, the purchaser, therefore, would take into consideration any factor which would potentially reduce the amount that the would ultimately receive from the trustees towards his remainder interest. The risk or hazard of estate duty liability will have a direct impact on the purchaser of the remainder interest and, thus, will be a relevant factor for the purpose of determination of valuation of the interest to be held by the remainderman.
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The Associated Cement Cos. Limited Vs. Keshvanand | the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. 17. When considering the situation of this case as on 24.8.1996, from the facts narrated above, we have no manner of doubt that the Magistrate should not have resorted to the axing process, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution. 18. Appellant has adopted an alternative contention that as the complainant in this case is a company which is an incorporeal entity there is no question of the complainant being absent in the court on any day fixed for hearing and hence Section 247 of the old Code (or Section 256 of the new Code) was inapplicable. Learned single Judge repelled the said alternative contention when it was raised in the High Court. 19. It is true that the complainant M/s. Associated Cement Company Ltd. is not a natural person. We have no doubt that a complaint can be filed in the name of a juristic person because it is also a person in the eye of law. But then, who would be the complainant in the criminal court for certain practical purposes ? 20. The word "complainant" is not defined in the Code of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (Section 11) as including "any company or association or body of persons whether incorporated or not". By virtue of Section 2(y) of the new Code words and expressions used in that Code but not defined therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in Section 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.21. Chapter XV of the New Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant....". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.22. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings.23. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.24. Be that so, we suggest as a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the companys services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court.25. At any rate, absence of the complainant envisaged in Section 249 or 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant. For those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person. | 1[ds]20. The word "complainant" is not defined in theCode of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (Section 11) as including "any company or association or body of persons whether incorporated or not". By virtue of Section 2(y) of the new Code words and expressions used in that Code but not defined therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in Section 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.21. Chapter XV of the New Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant....". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.22. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings.23. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.24. Be that so, we suggest as a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the companys services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court.25. At any rate, absence of the complainant envisaged in Section 249 or 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant. For those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person. | 1 | 3,172 | 831 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
the accused. But if the presence of the complainant on that day was quite unnecessary then resorting to the step of axing down the complaint may not be a proper exercise of the power envisaged in the section. The discretion must therefore be exercised judicially and fairly without impairing the cause of administration of criminal justice. 17. When considering the situation of this case as on 24.8.1996, from the facts narrated above, we have no manner of doubt that the Magistrate should not have resorted to the axing process, particularly since the complainant was already examined as a witness in the case besides examining yet another witness for the prosecution. 18. Appellant has adopted an alternative contention that as the complainant in this case is a company which is an incorporeal entity there is no question of the complainant being absent in the court on any day fixed for hearing and hence Section 247 of the old Code (or Section 256 of the new Code) was inapplicable. Learned single Judge repelled the said alternative contention when it was raised in the High Court. 19. It is true that the complainant M/s. Associated Cement Company Ltd. is not a natural person. We have no doubt that a complaint can be filed in the name of a juristic person because it is also a person in the eye of law. But then, who would be the complainant in the criminal court for certain practical purposes ? 20. The word "complainant" is not defined in the Code of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (Section 11) as including "any company or association or body of persons whether incorporated or not". By virtue of Section 2(y) of the new Code words and expressions used in that Code but not defined therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in Section 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.21. Chapter XV of the New Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant....". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.22. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings.23. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.24. Be that so, we suggest as a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the companys services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court.25. At any rate, absence of the complainant envisaged in Section 249 or 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant. For those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person.
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20. The word "complainant" is not defined in theCode of Criminal Procedure, whether old or new. Any person can set the law in motion except in cases where the statute has specifically provided otherwise. The word "person" is defined in the Indian Penal Code (Section 11) as including "any company or association or body of persons whether incorporated or not". By virtue of Section 2(y) of the new Code words and expressions used in that Code but not defined therein can have the same meaning assigned to them in the Penal Code. Thus when the word "person" is specifically defined in the Penal Code as including a company that definition can normally be adopted for understanding the scope of the word "complainant". However, the definition clauses subsumed in Section 2 of the new Code contains the opening key words that such definitions are to be adopted "unless the context otherwise requires". We have, therefore, to ascertain whether a company or association of persons or body corporate can be a complainant as per the new Code as for all practical purposes, looking at different contexts envisaged therein.21. Chapter XV of the New Code contains provisions for lodging complaints with Magistrates. Section 200 as the starting provision of that chapter enjoins on the Magistrate, who takes cognizance of an offence on a complaint, to examine the complainant on oath. Such examination is mandatory as can be discerned from the words "shall examine on oath the complainant....". The Magistrate is further required to reduce the substance of such examination to writing and it "shall be signed by the complainant". Under Section 203 the Magistrate is to dismiss the complaint if he is of opinion that there is no sufficient ground for proceeding after considering the said statement on oath. Such examination of the complainant on oath can be dispensed with only under two situations, one if the complaint was filed by a public servant, acting or purporting to act in the discharge of his official duties and the other when a court has made the complaint. Except under the above understandable situations the complainant has to make his physical presence for being examined by the Magistrate. Section 256 or Section 249 of the new Code clothes the Magistrate with jurisdiction to dismiss the complaint when the complainant is absent, which means his physical absence.22. The above scheme of the new Code makes it clear that complainant must be a corporeal person who is capable of making physical presence in the court. Its corollary is that even if a complaint is made in the name of an incorporeal person (like a company or corporation) it is necessary that a natural person represents such juristic person in the court and it is that natural person who is looked upon, for all practical purposes, to be the complainant in the case. In other words, when the complainant is a body corporate it is the de jure complainant, and it must necessarily associate a human being as de facto complainant to represent the former in court proceedings.23. As the corresponding provisions in the old Code are the same for all practical purposes, the legal position discussed above is applicable to the complaint filed under the old Code as well.24. Be that so, we suggest as a pragmatic proposition that no Magistrate shall insist that the particular person, whose statement was taken on oath at the first instance, alone can continue to represent the company till the end of the proceedings. There may be occasions when a different person can represent the company e.g. the particular person who represents the company at the first instance may either retire from the companys services or may otherwise cease to associate therewith or he would be transferred to a distant place. In such cases it would be practically difficult for the company to continue to make the same person represent the company in the court. In any such eventuality it is open to the de jure complainant company to seek permission of the court for sending any other person to represent the company in the court.25. At any rate, absence of the complainant envisaged in Section 249 or 256 of the new Code would include absence of the corporeal person representing the incorporeal complainant. For those reasons we are not persuaded to uphold the contention that Section 247 of the old Code (or Section 256 of the new Code) is not applicable in a case where the complainant is a company or any other juristic person.
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Kishore Kumar Khaitan Vs. Praveen Kumar Singh | entertaining a claim of this nature put forward by a plaintiff and hence the order is also vitiated by an erroneous approach to the question falling for decision. 12. The High Court, we must say, has also not properly exercised its jurisdiction under Article 227 of the Constitution of India. In fact, it has failed to exercise its jurisdiction. Though the High Court rightly noticed that the burden was on the plaintiff to show that he was in possession on the date of the order directing the parties to maintain status quo and that he was dispossessed in violation of the subsisting interim order, it did not scrutinize the order to find out whether the requisite findings had been entered by the Additional District Judge on both those aspects. It did not even consider whether there was a clear finding that the plaintiff was forcibly dispossessed on 20.6.1998 as alleged by him. It did not also consider whether the finding on possession was rendered based on a discussion of the available evidence and whether the directions in the order of remand had been complied with. In short, in exercise of its jurisdiction under Article 227 of the Constitution of India, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary findings. That is certainly a question of jurisdiction, since the jurisdiction to pass an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. We may incidentally notice that there is no prima facie material to indicate that on 20.6.1998 the plaintiff was, in fact, dispossessed by the defendants. We may in this context notice that the plaintiff could not show that he had either become a member of the tenants association of the building or had entered into an arrangement with it for the consumption of electricity in terms of the alleged rental arrangement. We have already noticed that none of the occupants of the building was examined to prima facie show dispossession. 13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiffs claim of possession. 14. Thus, prima facie, we find that the tenancy claimed by the plaintiff remains to be proved in the suit. For the present, we should say that prima facie, the plaintiff has not been able to establish the foundation for the possession claimed by him. It is significant to note that not even another tenant of the building among the various tenants in the building, was examined to establish that the plaintiff while in possession, had been dispossessed on 20.6.1998 as claimed by him. Any way, the Additional District Judge has not referred to any such evidence except referring to the affidavit of Shivanand Mishra, who even according to the plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appeal. 15. Before parting, it is necessary to notice the argument that after the order of the High Court and after the filing of this petition for special leave to appeal to this Court, the plaintiff was put in possession pursuant to the order under challenge through the process of court. Now that we have set aside the order of the High Court and that of the Additional District court and rejected the prayer of the plaintiff for mandatory injunction, the defendants would be entitled to re-delivery of possession by way of restitution. The possession will be restored to them through court. But considering the questions to be decided in the suit, we direct the defendants, once they are put in possession of the premises in restitution, not to create any third party interest in respect of the plaint schedule building (being a part of the whole building) pending disposal of the suit. Considering the nature of the suit and the question involved, we would request the trial court, in which the suit has been filed, to try and dispose of the suit expeditiously. We clarify that it would not be necessary to consider the interim application for prohibitory injunction separately and the same would also be disposed of along with the suit by the trial court. The suit will be disposed of after trial untrammeled by any of the observations contained in these interim orders. 16. | 1[ds]It is necessary to notice at this stage that in an original suit of this nature, it was not appropriate for the Additional District Judge to pass an order directing the parties to maintain status quo, without indicating what the status quo was. If he was satisfied that the appellant before him had made out a prima facie case for an ad interim ex parte injunction and the balance of convenience justified the grant of such an injunction, it was for him to have passed such an order of injunction. But simply directing the parties to maintain status quo without indicating what the status quo was, is not an order that should be passed at the initial stage of a litigation, especially when one court had found no reason to grant an ex parte order of injunction and the appellate court was dealing with only the limited question whether an ad interim order of injunction should or should not have been granted by the trial court, since the appeal was only against the refusal of an ad interim ex parte order of injunction and the main application for injunction pending suit, was still pending before the trial court itself. Therefore, we are prima facie of the view that the Additional District Judge ought not to have passed an equivocal order like the one passed in the circumstances of the case. But of course, that aspect has relevance only to the extent that before ordering an interim mandatory injunction or refusing it, the court has first to consider whether the plaintiff has proved that he was in possession on the date of suit and on the date of the order and he had been dispossessed the next day. Unless a clear prima facie finding that the plaintiff was in possession on those dates is entered, an order for interim mandatory injunction could not have been passed and any such order passed would be one without jurisdictionAn interim mandatory injunction is not a remedy that is easily granted. It is an order that is passed only in circumstances which are clear and the prima facie materials clearly justify a finding that the status quo has been altered by one of the parties to the litigation and the interests of justice demanded that the status quo ante be restored by way of an interim mandatory injunction. Keeping this principle in mind, it is necessary to see whether in the case on hand, the Additional District Judge was justified in passing the interim order of injunctionAdmittedly, the defendants are the owners of the building. The plaintiff was setting up a case that the plaint schedule part of the building had been granted to him on lease on 17.4.1998 and that he had obtained possession thereof on the basis of such a lease transaction. The lease, thus set up by the plaintiff has been denied by the defendants who had pleaded that the plaintiff had been entrusted with some renovation work for which he was being paid and the alleged document relied on by him was a concocted one. The grant of mandatory injunction would necessarily depend upon the plaintiff establishing before the court that on 19.6.98 when the court directed the parties to maintain status quo, he was in possession as a tenant of the plaint schedule property. The burden in that behalf is clearly on the plaintiff, the claim he made, having been denied by the defendants. Therefore, the first question that the District Court had to consider pursuant to the order of remand by the High Court was whether the plaintiff had prima facie established that the building was let out to him as claimed. The building is seen to be of a substantial dimension , within the District of Howrah, part of a city, commercially important. Prima facie it is difficult to imagine that such a building or the second floor and part of the ground floor of a building of this nature would have been let out in such an informal manner and the transaction not being evidenced even by a rent deed executed by the lessor and the lessee in terms of Section 107 of the Transfer of Property Act. What the plaintiff has relied upon is seen to be a letter on the letter-head of Khaitan Paper Machine Limited signed by the first defendant describing himself as Managing Director and Partner of Khaintan Estates. Prima facie it is seen that whereas the letter-head is that of Khaitan Paper Machine Limited, obviously a limited company, the signature is that of the Managing Director and partner of Khaitan Estates, an entity different from Khaitan Paper Machine Limited. It is difficult to imagine that the letter-head of one company was used for dealing with the properties of another entity which appears to be a partnership as per the description contained in the letter. Secondly, the letter purports to be an acknowledgement for having received a sum of Rs.2 lakhs as security from the plaintiff and creating a tenancy in favour of the plaintiff, and inducting the plaintiff into possession in respect of the entire second floor and shop rooms in the ground floor as a tenant on a monthly rent of Rs.7,000/- and conferring upon the plaintiff a right to do certain other acts in the premises. It is also stated that a stamped agreement would be created by the signatory as well as his wife, in favour of the plaintiff. Prima facie, the document does not satisfy the requirements of Section 107 of the Transfer of Property Act and though it acknowledges receipt of a sum of Rs.2 lakhs, there is no stamp affixed to indicate that it was intended to be a receipt for the said sum. As noticed, the rent stipulated is also Rs.7,000 per month. Suffice it to notice, that the genuineness of this document which is seriously disputed by the defendants, its admissibility in evidence and validity, have to be decided in the suit. Therefore, one of the questions that has to be decided is whether this letter is genuine and if it is genuine, whether it is capable of bringing into existence a lease or accepted as evidencing a lease transaction between the parties. Since this is the document on which the suit is based, the finding on the genuineness and validity of this document and the alleged transaction created by it will have a great bearing on the claim of possession by the plaintiff. No doubt the signature of defendant No.1 found in the document is admitted but with an explanation that it is a got up document. A suit has also been filed by the defendants challenging itAt this stage it is not necessary to go further into this aspect because what we are concerned with is whether pursuant to the order of remand earlier made by the High Court directing the District Court to take evidence and to decide the question falling for decision, the District Court has considered the relevant aspects and whether its order granting an interim mandatory order of injunction is capable of being sustained or is free from jurisdictional errorWhile setting aside the original order passed by the Additional District Judge, and remanding the application for an interim mandatory injunction, the High Court specifically pointed out that the essential condition for passing an interim mandatory injunction was that the party claiming it must be shown to be in possession on the date of the order directing the parties to maintain status quo and it must be further to shown that he was dispossessed after such an order was passed and that specific findings on both these aspects were necessary to sustain an order. The court had found that such findings were lacking and hence the Additional District Judge acted without jurisdiction in passing the interim mandatory order of injunction. The order passed was set aside and the application filed by the plaintiff was remanded. Certain directions regarding production of documents and their receivability were also issued. The District Court was directed to decide the claim of the plaintiff afresh, in accordance with law and in the light of the directions issued in that orderIt is seen that after the remand, the parties produced some evidence. The Additional District Court set out the arguments on the side of both the parties. Then it referred to certain decisions cited by the parties. It observed that there was at least some prima facie foundation in the claim of the plaintiff that the tenancy agreement was executed by defendant No.1 and whether it was concocted out of a signed blank letter head and whether it had legal force could only be decided in the suit. It did not discuss the oral evidence that was taken pursuant to the order of remand and merely stated that it has perused the evidence. After referring to some cash memos and money receipts produced by the plaintiff, it held that they prima facie showed that the plaintiff was in possession. Then it abruptly observed that at least prima facie it is proved that the plaintiff was in possession of the suit property on 19.6.1998, the date of the passing of the order of status quo. It stated that as such his possession must be restored and it was a fit case where the court should invoke its inherent jurisdiction to order restoration of possessionWe must say that the approach of the Additional District Judge and the manner in which he dealt with the question in spite of the directions in the order of remand by the High Court leave a lot to be desired. Instead of discussing the evidence properly to find whether the plaintiff had prima facie proved his possession on 19.6.1998 as a tenant as claimed by him and whether he had adduced any evidence to show prima facie that he had been forcibly dispossessed on 20.6.1998, the day after the grant of ad interim ex parte order to maintain status quo, the Additional District Judge has passed the interim order of mandatory injunction. We are of the view that there is no proper or adequate finding by the Additional District Judge either of prima facie possession of the plaintiff on 19.6.1998 or of his forcible dispossession on 20.6.1998, Apparently, not even a neighbour or occupant of any part of the building was examined in support of the case of forcible dispossession on the morning of 20.6.1998. In fact there does not appear to be any such finding of dispossession in spite of the direction in that behalf in the order of remand. Thus, we find that the order of interim mandatory injunction, an extraordinary relief in itself, is not supported by the necessary findings justifying its grant. We also find that the approach made by the Additional District Judge is not the approach that is called for, in entertaining a claim of this nature put forward by a plaintiff and hence the order is also vitiated by an erroneous approach to the question falling for decisionThe High Court, we must say, has also not properly exercised its jurisdiction under Article 227 of the Constitution of India. In fact, it has failed to exercise its jurisdiction. Though the High Court rightly noticed that the burden was on the plaintiff to show that he was in possession on the date of the order directing the parties to maintain status quo and that he was dispossessed in violation of the subsisting interim order, it did not scrutinize the order to find out whether the requisite findings had been entered by the Additional District Judge on both those aspects. It did not even consider whether there was a clear finding that the plaintiff was forcibly dispossessed on 20.6.1998 as alleged by him. It did not also consider whether the finding on possession was rendered based on a discussion of the available evidence and whether the directions in the order of remand had been complied with. In short, in exercise of its jurisdiction under Article 227 of the Constitution of India, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary findings. That is certainly a question of jurisdiction, since the jurisdiction to pass an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. We may incidentally notice that there is no prima facie material to indicate that on 20.6.1998 the plaintiff was, in fact, dispossessed by the defendants. We may in this context notice that the plaintiff could not show that he had either become a member of the tenants association of the building or had entered into an arrangement with it for the consumption of electricity in terms of the alleged rental arrangement. We have already noticed that none of the occupants of the building was examined to prima facie show dispossessionThe jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiffs claim of possessionThus, prima facie, we find that the tenancy claimed by the plaintiff remains to be proved in the suit. For the present, we should say that prima facie, the plaintiff has not been able to establish the foundation for the possession claimed by him. It is significant to note that not even another tenant of the building among the various tenants in the building, was examined to establish that the plaintiff while in possession, had been dispossessed on 20.6.1998 as claimed by him. Any way, the Additional District Judge has not referred to any such evidence except referring to the affidavit of Shivanand Mishra, who even according to the plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appealBefore parting, it is necessary to notice the argument that after the order of the High Court and after the filing of this petition for special leave to appeal to this Court, the plaintiff was put in possession pursuant to the order under challenge through the process of court. Now that we have set aside the order of the High Court and that of the Additional District court and rejected the prayer of the plaintiff for mandatory injunction, the defendants would be entitled to re-delivery of possession by way of restitution. The possession will be restored to them through court. But considering the questions to be decided in the suit, we direct the defendants, once they are put in possession of the premises in restitution, not to create any third party interest in respect of the plaint schedule building (being a part of the whole building) pending disposal of the suit. Considering the nature of the suit and the question involved, we would request the trial court, in which the suit has been filed, to try and dispose of the suit expeditiously. We clarify that it would not be necessary to consider the interim application for prohibitory injunction separately and the same would also be disposed of along with the suit by the trial court. The suit will be disposed of after trial untrammeled by any of the observations contained in these interim orders | 1 | 4,159 | 2,971 | ### Instruction:
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entertaining a claim of this nature put forward by a plaintiff and hence the order is also vitiated by an erroneous approach to the question falling for decision. 12. The High Court, we must say, has also not properly exercised its jurisdiction under Article 227 of the Constitution of India. In fact, it has failed to exercise its jurisdiction. Though the High Court rightly noticed that the burden was on the plaintiff to show that he was in possession on the date of the order directing the parties to maintain status quo and that he was dispossessed in violation of the subsisting interim order, it did not scrutinize the order to find out whether the requisite findings had been entered by the Additional District Judge on both those aspects. It did not even consider whether there was a clear finding that the plaintiff was forcibly dispossessed on 20.6.1998 as alleged by him. It did not also consider whether the finding on possession was rendered based on a discussion of the available evidence and whether the directions in the order of remand had been complied with. In short, in exercise of its jurisdiction under Article 227 of the Constitution of India, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary findings. That is certainly a question of jurisdiction, since the jurisdiction to pass an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. We may incidentally notice that there is no prima facie material to indicate that on 20.6.1998 the plaintiff was, in fact, dispossessed by the defendants. We may in this context notice that the plaintiff could not show that he had either become a member of the tenants association of the building or had entered into an arrangement with it for the consumption of electricity in terms of the alleged rental arrangement. We have already noticed that none of the occupants of the building was examined to prima facie show dispossession. 13. The jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiffs claim of possession. 14. Thus, prima facie, we find that the tenancy claimed by the plaintiff remains to be proved in the suit. For the present, we should say that prima facie, the plaintiff has not been able to establish the foundation for the possession claimed by him. It is significant to note that not even another tenant of the building among the various tenants in the building, was examined to establish that the plaintiff while in possession, had been dispossessed on 20.6.1998 as claimed by him. Any way, the Additional District Judge has not referred to any such evidence except referring to the affidavit of Shivanand Mishra, who even according to the plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appeal. 15. Before parting, it is necessary to notice the argument that after the order of the High Court and after the filing of this petition for special leave to appeal to this Court, the plaintiff was put in possession pursuant to the order under challenge through the process of court. Now that we have set aside the order of the High Court and that of the Additional District court and rejected the prayer of the plaintiff for mandatory injunction, the defendants would be entitled to re-delivery of possession by way of restitution. The possession will be restored to them through court. But considering the questions to be decided in the suit, we direct the defendants, once they are put in possession of the premises in restitution, not to create any third party interest in respect of the plaint schedule building (being a part of the whole building) pending disposal of the suit. Considering the nature of the suit and the question involved, we would request the trial court, in which the suit has been filed, to try and dispose of the suit expeditiously. We clarify that it would not be necessary to consider the interim application for prohibitory injunction separately and the same would also be disposed of along with the suit by the trial court. The suit will be disposed of after trial untrammeled by any of the observations contained in these interim orders. 16.
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is not the approach that is called for, in entertaining a claim of this nature put forward by a plaintiff and hence the order is also vitiated by an erroneous approach to the question falling for decisionThe High Court, we must say, has also not properly exercised its jurisdiction under Article 227 of the Constitution of India. In fact, it has failed to exercise its jurisdiction. Though the High Court rightly noticed that the burden was on the plaintiff to show that he was in possession on the date of the order directing the parties to maintain status quo and that he was dispossessed in violation of the subsisting interim order, it did not scrutinize the order to find out whether the requisite findings had been entered by the Additional District Judge on both those aspects. It did not even consider whether there was a clear finding that the plaintiff was forcibly dispossessed on 20.6.1998 as alleged by him. It did not also consider whether the finding on possession was rendered based on a discussion of the available evidence and whether the directions in the order of remand had been complied with. In short, in exercise of its jurisdiction under Article 227 of the Constitution of India, it behoved the High Court to consider whether the order of interim mandatory injunction was supported by the necessary findings. That is certainly a question of jurisdiction, since the jurisdiction to pass an interim mandatory order can only be based on such clear findings and the grant of an interim order without such findings would be acting without jurisdiction. We may incidentally notice that there is no prima facie material to indicate that on 20.6.1998 the plaintiff was, in fact, dispossessed by the defendants. We may in this context notice that the plaintiff could not show that he had either become a member of the tenants association of the building or had entered into an arrangement with it for the consumption of electricity in terms of the alleged rental arrangement. We have already noticed that none of the occupants of the building was examined to prima facie show dispossessionThe jurisdiction under Article 227 of the Constitution may be restrictive in the sense that it is to be invoked only to correct errors of jurisdiction. But when a court asks itself a wrong question or approaches the question in an improper manner, even if it comes to a finding of fact, the said finding of fact cannot be said to be one rendered with jurisdiction and it will still be amenable to correction at the hands of the High Court under Article 227 of the Constitution. The failure to render the necessary findings to support its order would also be a jurisdictional error liable to correction. Here the jurisdiction to grant an interim mandatory injunction could be exercised on entering a finding that on the day the order for maintaining the status quo was passed, the plaintiff was in possession and a day after the interim order was passed, he was in fact dispossessed. The interim direction to maintain status quo was an ex parte order. From the order of the Additional District court it is not possible to come to the conclusion that on a proper advertence to the relevant materials, prima facie clear findings had been rendered by that court on these aspects. The prima facie infirmities attached to the letter said to create the tenancy cannot also be ignored, since that transaction is the foundation of the plaintiffs claim of possessionThus, prima facie, we find that the tenancy claimed by the plaintiff remains to be proved in the suit. For the present, we should say that prima facie, the plaintiff has not been able to establish the foundation for the possession claimed by him. It is significant to note that not even another tenant of the building among the various tenants in the building, was examined to establish that the plaintiff while in possession, had been dispossessed on 20.6.1998 as claimed by him. Any way, the Additional District Judge has not referred to any such evidence except referring to the affidavit of Shivanand Mishra, who even according to the plaintiff was no more in occupation. Thus, the disturbance of the status quo by the defendants has not been established. Thus, prima facie it is clear that the plaintiff has not laid the foundation for the grant of an interim order of mandatory injunction in his favour. The order so passed by the Additional District Judge, and confirmed by the High Court, therefore, calls for interference in this appealBefore parting, it is necessary to notice the argument that after the order of the High Court and after the filing of this petition for special leave to appeal to this Court, the plaintiff was put in possession pursuant to the order under challenge through the process of court. Now that we have set aside the order of the High Court and that of the Additional District court and rejected the prayer of the plaintiff for mandatory injunction, the defendants would be entitled to re-delivery of possession by way of restitution. The possession will be restored to them through court. But considering the questions to be decided in the suit, we direct the defendants, once they are put in possession of the premises in restitution, not to create any third party interest in respect of the plaint schedule building (being a part of the whole building) pending disposal of the suit. Considering the nature of the suit and the question involved, we would request the trial court, in which the suit has been filed, to try and dispose of the suit expeditiously. We clarify that it would not be necessary to consider the interim application for prohibitory injunction separately and the same would also be disposed of along with the suit by the trial court. The suit will be disposed of after trial untrammeled by any of the observations contained in these interim orders
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Sayed Rehmanmiya Mustafamiya & Others Vs. The State Of Gujarat & Others | payable on all lands held, on the commencement of the Act, as Barkhali lands including Gharkhed, and land allotted under the Act. The provision made in Section 16 was that the lands were liable to payment of land revenue under the provisions of the Code and the Rules made thereunder. In that section, the Legislature did not make reference to any survey or settlement. It only laid down that the land revenue payable was to be as determined under the provisions of the Code and the Rules made thereunder. A similar provision could have been made in Section 19 for superseding the assessment made by the Mamlatdar. Instead, the requirement prescribed by the Legislature was that the assessment by the Mamlatdar was to continue in force until the village is surveyed and settled and not merely until an assessment of revenue payable in respect of the land is determined either under Section 52 of the Code or Chapter VIII-A of the Code.5. This view of ours is further strengthened by a comparison of the language used in Section 19 of the Act and Section 52 of the Code. Section 52 of the Code envisages assessment of amount to be paid as land revenue "on all lands", while Section 19 of the Act refers to survey and settlement of "a village" and not of lands. Obviously, under Sec. 52 of the Code, there could be assessment of revenue on lands without survey or settlement of a village and, when the Legislature, in Section 19 of the Act, used the expression "village is surveyed and settled", it clearly ruled out a mere assessment under Section 52 of the Code which need not follow a survey or settlement of a village. In our opinion, therefore, under Section 19 of the Act, the assessment made by the Mamlatdar under that section itself must continue in force until there is a survey and settlement in accordance with Chapters VIII and VIII-A of the Code.6. In this connection, we may take notice of one more aspect. Even under Section 52 of the Code and Rule 17 of the Rules made thereunder, there is, in fact, no survey at all. All that Rule 17 requires the Collector to do is to classify land into three classes: (1) dry crop, (2) rice and (3) irrigated. These three classes are then to be divided into three sub-classes, good, medium and inferior. Assessment is then to be made on each parcel of land by comparison of similar class and sub-class of land with land of the same class and sub-class situated in the Bombay area apart from areas transferred to Bombay State at the time of Reorganisation of the States in 1956. This procedure does not involve any survey. Survey, as indicated by Chapter III-A of the Land Revenue Rules framed under the Code, requires the settlement officer to examine physical configuration, climate and rainfall, markets, communications, standard of husbandry, population and supply of labour, agricultural resources, the variations in the area of occupied and cultivated lands during the period of previous settlement, wages, prices, yield of the principal crop, ordinary expenses of cultivating each crop, and rental values of lands used for purposes of agriculture. No such survey of any of these factors was required to be done by the Collector when making the assessment of land revenue payable under Section 52 of the Code read with Rule 17. In fact, the provisions of Rule 17 require very limited action by the Collector in classifying lands and comparing lands to be assessed with lands in untransferred area of the Bombay State. Fixing of land revenue payable, on this principle, is also clearly exercise of a summary power which appears to have been conferred on the Collector by Section 52 as a temporary measure until there could be a proper settlement of land revenue after survey in accordance with Chapters VIII and VIII-A of the Code. If such assessment made by the Collector by a more or less summary procedure were intended to be given effect to by the Legislature in the Act, there was no need at all to create another authority in the Mamlatdar to fix assessment by a slightly different summary procedure. It seems to us that the Saurashtra Legislature, in passing the Act, for the temporary period until there could be a regular survey and settlement, created a machinery by granting power to the Mamlatdar to make a summary assessment and that was clearly intended not to be superseded by another summary fixation of assessment by the Collector under Section 52 of the Code.7. The High Court has held that, in substance and in effect, the Collector, in acting under Section 52 of the Code and Rule 17, did make the assessment after survey and settlement. Nowhere did the High Court examine whether any of the steps which are taken in a survey were required to be taken by the Collector at all. The High Court seems to have assumed that the procedure laid down in Rule 17 amounted to survey and settlement. Further, the High Court lost sight of the fact that, under Sec. 52 of the Code and Rule 17 the assessment of land revenue payable was in respect of lands, while Section 19 of the Act envisaged survey and settlement not of individual lands but of a village. We are, therefore, unable to agree with the view of the High Court that what the Collector did in 1959 in making the assessment under Section 52 of the Code and Rule 17 amounted to survey and settlement of villages as envisaged in Sec. 19 of the Act. There having been no survey and settlement of the village, the assessment made by the Mamlatdar continued to be assessment for purposes of the Act and the Government was, therefore, not justified in varying the payment of annuity under Section 18 of the Act which should have been continued to be paid in accordance with that assessment. | 1[ds]4. It is true that the words "surveyed and settled" have not been defined in the Act; but, in Clause (v) of Section 2 of the Act, it is laid down that all words and expressions used, but not defined, in the Act shall have the meanings assigned to them in the Reforms Act. Again, in Section 2 (33) of the Reforms Act, it is laid down that all words and expressions used, but not defined, in that Act and defined in the Code shall have the meanings assigned to them in the Code. Since the words "surveyed and settled" were not defined in either of these two Acts, we have to look to the Code to find their meaning.will, thus, be seen that, even under the Code, the two words "survey" and "settlement" were not fully defined for all purposes. The definition of settlement was limited by laying down that this word was to connote the meaning given to it in the definition only in Chapter VIII-A. However, the procedure for survey was fully indicated in Chapter VIII, while the procedure for settlement was fully laid down in Chapter VIII-A. It was in this state of law that the Saurashtra Legislature passed the Act in 1951. It is, however, clear that, at the time when the Act was passed, the only manner of survey which was laid down by any law applicable in the State of Saurashtra was that contained in Chapter VIII of the Code and the only manner of settlement was that contained in Chapter VIII-A. There was, of course at the same time, provision contained in Section 52 of the Code for assessment of the amount to be paid as land revenue on all lands; but, in that section, neither the words "survey" nor "settlement" or any of their derivatives was used. In the circumstances, we consider that the submission made by counsel for the appellants that the words "surveyed and settled" used in Section 19 of the Act were intended to refer to the survey and settlement under Chapters VIII and VIII-A of the Code has great force.This view of ours is further strengthened by a comparison of the language used in Section 19 of the Act and Section 52 of theseems to us that the Saurashtra Legislature, in passing the Act, for the temporary period until there could be a regular survey and settlement, created a machinery by granting power to the Mamlatdar to make a summary assessment and that was clearly intended not to be superseded by another summary fixation of assessment by the Collector under Section 52 of the Code.7. The High Court has held that, in substance and in effect, the Collector, in acting under Section 52 of the Code and Rule 17, did make the assessment after survey and settlement. Nowhere did the High Court examine whether any of the steps which are taken in a survey were required to be taken by the Collector at all. The High Court seems to have assumed that the procedure laid down in Rule 17 amounted to survey and settlement. Further, the High Court lost sight of the fact that, under Sec. 52 of the Code and Rule 17 the assessment of land revenue payable was in respect of lands, while Section 19 of the Act envisaged survey and settlement not of individual lands but of a village. We are, therefore, unable to agree with the view of the High Court that what the Collector did in 1959 in making the assessment under Section 52 of the Code and Rule 17 amounted to survey and settlement of villages as envisaged in Sec. 19 of the Act. There having been no survey and settlement of the village, the assessment made by the Mamlatdar continued to be assessment for purposes of the Act and the Government was, therefore, not justified in varying the payment of annuity under Section 18 of the Act which should have been continued to be paid in accordance with that assessment. | 1 | 3,388 | 751 | ### Instruction:
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payable on all lands held, on the commencement of the Act, as Barkhali lands including Gharkhed, and land allotted under the Act. The provision made in Section 16 was that the lands were liable to payment of land revenue under the provisions of the Code and the Rules made thereunder. In that section, the Legislature did not make reference to any survey or settlement. It only laid down that the land revenue payable was to be as determined under the provisions of the Code and the Rules made thereunder. A similar provision could have been made in Section 19 for superseding the assessment made by the Mamlatdar. Instead, the requirement prescribed by the Legislature was that the assessment by the Mamlatdar was to continue in force until the village is surveyed and settled and not merely until an assessment of revenue payable in respect of the land is determined either under Section 52 of the Code or Chapter VIII-A of the Code.5. This view of ours is further strengthened by a comparison of the language used in Section 19 of the Act and Section 52 of the Code. Section 52 of the Code envisages assessment of amount to be paid as land revenue "on all lands", while Section 19 of the Act refers to survey and settlement of "a village" and not of lands. Obviously, under Sec. 52 of the Code, there could be assessment of revenue on lands without survey or settlement of a village and, when the Legislature, in Section 19 of the Act, used the expression "village is surveyed and settled", it clearly ruled out a mere assessment under Section 52 of the Code which need not follow a survey or settlement of a village. In our opinion, therefore, under Section 19 of the Act, the assessment made by the Mamlatdar under that section itself must continue in force until there is a survey and settlement in accordance with Chapters VIII and VIII-A of the Code.6. In this connection, we may take notice of one more aspect. Even under Section 52 of the Code and Rule 17 of the Rules made thereunder, there is, in fact, no survey at all. All that Rule 17 requires the Collector to do is to classify land into three classes: (1) dry crop, (2) rice and (3) irrigated. These three classes are then to be divided into three sub-classes, good, medium and inferior. Assessment is then to be made on each parcel of land by comparison of similar class and sub-class of land with land of the same class and sub-class situated in the Bombay area apart from areas transferred to Bombay State at the time of Reorganisation of the States in 1956. This procedure does not involve any survey. Survey, as indicated by Chapter III-A of the Land Revenue Rules framed under the Code, requires the settlement officer to examine physical configuration, climate and rainfall, markets, communications, standard of husbandry, population and supply of labour, agricultural resources, the variations in the area of occupied and cultivated lands during the period of previous settlement, wages, prices, yield of the principal crop, ordinary expenses of cultivating each crop, and rental values of lands used for purposes of agriculture. No such survey of any of these factors was required to be done by the Collector when making the assessment of land revenue payable under Section 52 of the Code read with Rule 17. In fact, the provisions of Rule 17 require very limited action by the Collector in classifying lands and comparing lands to be assessed with lands in untransferred area of the Bombay State. Fixing of land revenue payable, on this principle, is also clearly exercise of a summary power which appears to have been conferred on the Collector by Section 52 as a temporary measure until there could be a proper settlement of land revenue after survey in accordance with Chapters VIII and VIII-A of the Code. If such assessment made by the Collector by a more or less summary procedure were intended to be given effect to by the Legislature in the Act, there was no need at all to create another authority in the Mamlatdar to fix assessment by a slightly different summary procedure. It seems to us that the Saurashtra Legislature, in passing the Act, for the temporary period until there could be a regular survey and settlement, created a machinery by granting power to the Mamlatdar to make a summary assessment and that was clearly intended not to be superseded by another summary fixation of assessment by the Collector under Section 52 of the Code.7. The High Court has held that, in substance and in effect, the Collector, in acting under Section 52 of the Code and Rule 17, did make the assessment after survey and settlement. Nowhere did the High Court examine whether any of the steps which are taken in a survey were required to be taken by the Collector at all. The High Court seems to have assumed that the procedure laid down in Rule 17 amounted to survey and settlement. Further, the High Court lost sight of the fact that, under Sec. 52 of the Code and Rule 17 the assessment of land revenue payable was in respect of lands, while Section 19 of the Act envisaged survey and settlement not of individual lands but of a village. We are, therefore, unable to agree with the view of the High Court that what the Collector did in 1959 in making the assessment under Section 52 of the Code and Rule 17 amounted to survey and settlement of villages as envisaged in Sec. 19 of the Act. There having been no survey and settlement of the village, the assessment made by the Mamlatdar continued to be assessment for purposes of the Act and the Government was, therefore, not justified in varying the payment of annuity under Section 18 of the Act which should have been continued to be paid in accordance with that assessment.
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4. It is true that the words "surveyed and settled" have not been defined in the Act; but, in Clause (v) of Section 2 of the Act, it is laid down that all words and expressions used, but not defined, in the Act shall have the meanings assigned to them in the Reforms Act. Again, in Section 2 (33) of the Reforms Act, it is laid down that all words and expressions used, but not defined, in that Act and defined in the Code shall have the meanings assigned to them in the Code. Since the words "surveyed and settled" were not defined in either of these two Acts, we have to look to the Code to find their meaning.will, thus, be seen that, even under the Code, the two words "survey" and "settlement" were not fully defined for all purposes. The definition of settlement was limited by laying down that this word was to connote the meaning given to it in the definition only in Chapter VIII-A. However, the procedure for survey was fully indicated in Chapter VIII, while the procedure for settlement was fully laid down in Chapter VIII-A. It was in this state of law that the Saurashtra Legislature passed the Act in 1951. It is, however, clear that, at the time when the Act was passed, the only manner of survey which was laid down by any law applicable in the State of Saurashtra was that contained in Chapter VIII of the Code and the only manner of settlement was that contained in Chapter VIII-A. There was, of course at the same time, provision contained in Section 52 of the Code for assessment of the amount to be paid as land revenue on all lands; but, in that section, neither the words "survey" nor "settlement" or any of their derivatives was used. In the circumstances, we consider that the submission made by counsel for the appellants that the words "surveyed and settled" used in Section 19 of the Act were intended to refer to the survey and settlement under Chapters VIII and VIII-A of the Code has great force.This view of ours is further strengthened by a comparison of the language used in Section 19 of the Act and Section 52 of theseems to us that the Saurashtra Legislature, in passing the Act, for the temporary period until there could be a regular survey and settlement, created a machinery by granting power to the Mamlatdar to make a summary assessment and that was clearly intended not to be superseded by another summary fixation of assessment by the Collector under Section 52 of the Code.7. The High Court has held that, in substance and in effect, the Collector, in acting under Section 52 of the Code and Rule 17, did make the assessment after survey and settlement. Nowhere did the High Court examine whether any of the steps which are taken in a survey were required to be taken by the Collector at all. The High Court seems to have assumed that the procedure laid down in Rule 17 amounted to survey and settlement. Further, the High Court lost sight of the fact that, under Sec. 52 of the Code and Rule 17 the assessment of land revenue payable was in respect of lands, while Section 19 of the Act envisaged survey and settlement not of individual lands but of a village. We are, therefore, unable to agree with the view of the High Court that what the Collector did in 1959 in making the assessment under Section 52 of the Code and Rule 17 amounted to survey and settlement of villages as envisaged in Sec. 19 of the Act. There having been no survey and settlement of the village, the assessment made by the Mamlatdar continued to be assessment for purposes of the Act and the Government was, therefore, not justified in varying the payment of annuity under Section 18 of the Act which should have been continued to be paid in accordance with that assessment.
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National Textile Corporation Vs. S State of Maharashtra | as creating an encumbrance over the land falling within Section 4 (2) of the Act. In our view though by reason of the two notifications a burden is cast upon the land in question in that the land is subjected to the liability of being compulsorily acquired under the provisions of the Land Acquisition Act, such burden or liability would non fall within the expression encumbrance under Subsection (2) of Section 4.( 11 ) THERE is yet another aspect of the matter which will have a bearing on the question under consideration. The sole object or the intention of making provision like sub-section (2) of Section 4 of the Act appears to be that all property of the sick textile undertaking should vest in the Central Government freed and discharged from encumbrances. In other words, whatever encumbrances that might be subsisting on the property should no longer bind the Central Government or the Textile Corporation which should be free to deal with it thereafter as it likes and if that be the real object or intention of subsection (2) of Section 4. then clearly the liability of being acquired that gets attached to the land by reason of the issuance of the notifications under the land Acquisition Act was never intended to be covered by the expression all other incumbrances occurring in sub-section (2) of Section 4. Assuming that this land got vested in the Central Government and thereafter in the National textile Corporation under Section 3 read with Section 4 (2) freed from the aforesaid burden or liability of being acquired. it was not disputed before us by mr. Dalal that it was open to the appropriate Government immediately thereafter to acquire that very land by issuing fresh notifications under Section 4 and Section 6 of the Land Acquisition Act and we do not see any hurdle in the appropriate Government acquiring the very land after the same got so vested in the National Textile Corporation under Section 3 of the Act. If, therefore, after the property had vested in the national Textile Corporation the same could be acquired by appropriate Government we fall to understand as to what purpose could be achieved by holding that the earlier notifications issued under the Land acquisition Act created an encumbrance which the National Textile Corporation got rid of under Sub-section (2) of Section 4 of the Act No. 57 of 1974. Looking at the question from his angle, we are of the view that the phrase all other incumbrances occurring in sub-section (2) of Section 4 cannot include any such burden or liability to which the land is subjected by reason of issuance of notification under Section 4 or Section 6 of the Land Acquisition Act. ( 12 ) IN this view of the matter it is clear to us that the provisions of Section 4 (2)of the Act cannot be availed of by the appellant before us for the purpose of contending that the Notifications in question in ceased to be effective qua the land in question and, therefore , the contention of Mr. Dalla must fail. ( 13 ) AS regards the other contention we do not agree that the learned Judge was in error in rejecting the applications of the original petitioner to lead oral evidence in support of its case that the purported acquisition was by way of colourable exercise of power or mala fide. Initially an application was made for permission to lead oral evidence in support of that plea on 16-7-1969 but the type of evidence that was offered at that time was the evidence that the offered at that time was the evidence of an expert which would have been in the nature of opinion evidence. The learned Judge, therefore , by his order dated 16-71969 declined to give permission to the original petitioner to lead that type of evidence. Admittedly even that type of evidence was not ready with the original petitioner and an adjournment was sought which was refused. Thereafter, the hearing of the case proceeded and at the conclusion of the hearing the petitioner desired to have a further opportunity to settle the matter with the municipal authorities and therefore the learned Judge reserved his judgment with a view to give the petitioner time to negotiate a settlement. When the matter was placed on board for judgment on 11-8-1969 another application was made seeking permission to lead oral evidence of persons who would depose to the area required by Municipal schools constructed during the relevant period between the two notifications i. e. between 1961 and 1964 in order to show that having regard to such area which was regarded as sufficient the present case was one of colourable exercise of power. The learned Judge rejected that application as in his view the hearing the case the had been concluded and he had reserved the judgment only to enable the petitioner to negotiate a settlement with the municipal authorities which it is desired to do and as such the petitioner was not entitled to make a second request for leading oral evidence. The learned Judge has also noted in his judgment that this type of case had not been even made out by the petitioner in the petition showing the area occupied by municipal schools during the relevant period i. e. between 1961 and 1964. He, therefore, rejected that request and proceeded to deliver his judgment. In the circumstances mentioned by the learned Judge we do not think that he was wrongly rejected the prayer made he has wrongly rejected the prayer made by the original petitioner to lead oral evidence in the case. In the absence of any material on record the learned Judge took the view that the petitioner had failed to establish that it was a case of colourable exercise of power and or that the purported acquisition was mala fide and we are of the view that the finding of the learned Judge in that behalf is correct. | 0[ds]l for the appellant has strongly relied upon the expression shall vest absolutely in occurring in Section 3 (1) of the said Act and has further relied uponsubsection (2) of Section4 for the purpose of contending that the land has so vested in the Central Government freed from liability of being acquired under the provisions of the Land AcquisitionAct. There is no doubt that the expression "shall vest absolutely in" has been used. in(1) of Section 3. But that itself will not show that the land in question had vested in the Central Government free from liability of being acquired under the provisions of the Land Acquisition Act in other words, it is essential that the notifications in question must amount to or fall within the phrase all other encumbrances occurring insubsec (2) of Section 4and unless the notifications do fall within the purview of that expression occurring insubsec (2) of Section 4the contention of Mr. Dalal cannot obviously beION (2) of Section 4 of the Act consists of two parts; the first part provides that all property of sick textile undertaking as has been referred to in section 4 (1) shall by force of such vesting, be freed and discharged from any trust, obligation, mortgage, charge, lien and all other encumbrances affecting it, the second part provides that any attachment, injunction or decree or order of any Court restricting the use of such property in any manner shall be deemed to have been withdrawn. A close analysis of the first part shows two things: first that general words viz. all other encumbrances follow specific words such as any trust obligation, mortgage, charge, lien" and secondly the specific words that precede the general words speak of types of encumbrances occurring in the first part of(2) will have to be construed ejusdem generis and as such the said phrase will include only such encumbrances that partake the nature of the types of encumbrances specified earlier. Thusthe question is whether the notification under Section 4 and Section 6 of the Land acquisition Act create such an encumbrance on the property which partakes the nature of any trust, obligation, mortgage, charge or lienIn other words, the encumbrance must be of such a nature that upon enforcement thereof the liability thereunder is satisfied that is to say the liability to meet beneficial interest under a trust or the liability arising under an obligation or a mortgage or charge or lien is satisfied and we do not think that by reason of issuance of the notifications in question any encumbrance of this nature is created on the property in question. The notifications under Section 4 and 6 of the Land acquisition Act do not create any liability which is required to be satisfied from out of the property to which the said notifications relate and therefore, in our view, the notifications cannot be regarded as creating any encumbrance falling within the phrase all other encumbrances occurring insubsection (2) ofsection 4. It is true that by reason of the notifications the land in question is subjected to the liability of being compulsorily acquired under the provisions of the Land Acquisition Act but that is not the liability contemplated by the phrase all other encumbrances occurring insubsection (2) ofSection 4/ In our view, the matter cannot fall under the second part of(2 ). It is true that by reason of the notifications the right to use the property after making improvements therein is to a limited extent affected in view of clause seventhly of Section 24 of the Land Acquisition Act. but the restriction on the use of the property in that manner is not the restriction on the sue thereof by reasons of any direction of the Court in the nature of attachment injunction, decree or order. In this view of the matter, it is difficult to accept Mr. Dalals contention that the land in question has vested in the Central Government or the National textile Corporation freed from the effect of the two notifications issued under section 4 and Section 6 of the Land Acquisition Act by reason of Section 3 read with Section 4 (2) of the Act 57 of0 ) MR. Dalal , however, urged that the phrase all other encumbrances occurring in Section 4 (2) of the said Act ought not to be construed by adopting the doctrine of ejusdem generis and if it was not so contoured the phrase would have a wider meaning and the notifications in question should be regarded as creating an encumbrance in falling within Section 4 (2) of the Act.We are not inclined to accept this submission of Mr. Dalal, for both the requirements are satisfied for applying the rule of ejusdem generis but even if the phrase all other incumbrances occurring insubsection (2) ofSection 4 were to be given a wide meaning by not confining it to types of encumbrances indicated earlier, still it is difficult to accept contention of Mr. Dalla that the notifications in question constitute or create an encumbrance on the land in11 ) THERE is yet another aspect of the matter which will have a bearing on the question under consideration. The sole object or the intention of making provision likesubsection (2) ofSection 4 of the Act appears to be that all property of the sick textile undertaking should vest in the Central Government freed and discharged from encumbrances. In other words, whatever encumbrances that might be subsisting on the property should no longer bind the Central Government or the Textile Corporation which should be free to deal with it thereafter as it likes and if that be the real object or intention ofsubsection (2) of4. then clearly the liability of being acquired that gets attached to the land by reason of the issuance of the notifications under the land Acquisition Act was never intended to be covered by the expression all other incumbrances occurring insubsection (2) ofSection 4. Assuming that this land got vested in the Central Government and thereafter in the National textile Corporation under Section 3 read with Section 4 (2) freed from the aforesaid burden or liability of being acquired. it was not disputed before us by mr. Dalal that it was open to the appropriate Government immediately thereafter to acquire that very land by issuing fresh notifications under Section 4 and Section 6 of the Land Acquisition Act and we do not see any hurdle in the appropriate Government acquiring the very land after the same got so vested in the National Textile Corporation under Section 3 of the Act. If, therefore, after the property had vested in the national Textile Corporation the same could be acquired by appropriate Government we fall to understand as to what purpose could be achieved by holding that the earlier notifications issued under the Land acquisition Act created an encumbrance which the National Textile Corporation got rid of underSubsection (2) of Section4 of the Act No. 57 of 1974. Looking at the question from his angle, we are of the view that the phrase all other incumbrances occurring insubsection (2) ofSection 4 cannot include any such burden or liability to which the land is subjected by reason of issuance of notification under Section 4 or Section 6 of the Land Acquisition12 ) IN this view of the matter it is clear to us that the provisions of Section 4 (2)of the Act cannot be availed of by the appellant before us for the purpose of contending that the Notifications in question in ceased to be effective qua the land in question and, therefore , the contention of Mr. Dalla must13 ) AS regards the other contention we do not agree that the learned Judge was in error in rejecting the applications of the original petitioner to lead oral evidence in support of its case that the purported acquisition was by way of colourable exercise of power or mala fide. Initially an application was made for permission to lead oral evidence in support of that plea onbut the type of evidence that was offered at that time was the evidence that the offered at that time was the evidence of an expert which would have been in the nature of opinion evidence. The learned Judge, therefore , by his order dateddeclined to give permission to the original petitioner to lead that type of evidence. Admittedly even that type of evidence was not ready with the original petitioner and an adjournment was sought which was refused. Thereafter, the hearing of the case proceeded and at the conclusion of the hearing the petitioner desired to have a further opportunity to settle the matter with the municipal authorities and therefore the learned Judge reserved his judgment with a view to give the petitioner time to negotiate a settlement. When the matter was placed on board for judgment onanother application was made seeking permission to lead oral evidence of persons who would depose to the area required by Municipal schools constructed during the relevant period between the two notifications i. e. between 1961 and 1964 in order to show that having regard to such area which was regarded as sufficient the present case was one of colourable exercise of power. The learned Judge rejected that application as in his view the hearing the case the had been concluded and he had reserved the judgment only to enable the petitioner to negotiate a settlement with the municipal authorities which it is desired to do and as such the petitioner was not entitled to make a second request for leading oral evidence. The learned Judge has also noted in his judgment that this type of case had not been even made out by the petitioner in the petition showing the area occupied by municipal schools during the relevant period i. e. between 1961 and 1964. He, therefore, rejected that request and proceeded to deliver his judgment. In the circumstances mentioned by the learned Judge we do not think that he was wrongly rejected the prayer made he has wrongly rejected the prayer made by the original petitioner to lead oral evidence in the case. In the absence of any material on record the learned Judge took the view that the petitioner had failed to establish that it was a case of colourable exercise of power and or that the purported acquisition was mala fide and we are of the view that the finding of the learned Judge in that behalf is correct. | 0 | 6,451 | 1,868 | ### Instruction:
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as creating an encumbrance over the land falling within Section 4 (2) of the Act. In our view though by reason of the two notifications a burden is cast upon the land in question in that the land is subjected to the liability of being compulsorily acquired under the provisions of the Land Acquisition Act, such burden or liability would non fall within the expression encumbrance under Subsection (2) of Section 4.( 11 ) THERE is yet another aspect of the matter which will have a bearing on the question under consideration. The sole object or the intention of making provision like sub-section (2) of Section 4 of the Act appears to be that all property of the sick textile undertaking should vest in the Central Government freed and discharged from encumbrances. In other words, whatever encumbrances that might be subsisting on the property should no longer bind the Central Government or the Textile Corporation which should be free to deal with it thereafter as it likes and if that be the real object or intention of subsection (2) of Section 4. then clearly the liability of being acquired that gets attached to the land by reason of the issuance of the notifications under the land Acquisition Act was never intended to be covered by the expression all other incumbrances occurring in sub-section (2) of Section 4. Assuming that this land got vested in the Central Government and thereafter in the National textile Corporation under Section 3 read with Section 4 (2) freed from the aforesaid burden or liability of being acquired. it was not disputed before us by mr. Dalal that it was open to the appropriate Government immediately thereafter to acquire that very land by issuing fresh notifications under Section 4 and Section 6 of the Land Acquisition Act and we do not see any hurdle in the appropriate Government acquiring the very land after the same got so vested in the National Textile Corporation under Section 3 of the Act. If, therefore, after the property had vested in the national Textile Corporation the same could be acquired by appropriate Government we fall to understand as to what purpose could be achieved by holding that the earlier notifications issued under the Land acquisition Act created an encumbrance which the National Textile Corporation got rid of under Sub-section (2) of Section 4 of the Act No. 57 of 1974. Looking at the question from his angle, we are of the view that the phrase all other incumbrances occurring in sub-section (2) of Section 4 cannot include any such burden or liability to which the land is subjected by reason of issuance of notification under Section 4 or Section 6 of the Land Acquisition Act. ( 12 ) IN this view of the matter it is clear to us that the provisions of Section 4 (2)of the Act cannot be availed of by the appellant before us for the purpose of contending that the Notifications in question in ceased to be effective qua the land in question and, therefore , the contention of Mr. Dalla must fail. ( 13 ) AS regards the other contention we do not agree that the learned Judge was in error in rejecting the applications of the original petitioner to lead oral evidence in support of its case that the purported acquisition was by way of colourable exercise of power or mala fide. Initially an application was made for permission to lead oral evidence in support of that plea on 16-7-1969 but the type of evidence that was offered at that time was the evidence that the offered at that time was the evidence of an expert which would have been in the nature of opinion evidence. The learned Judge, therefore , by his order dated 16-71969 declined to give permission to the original petitioner to lead that type of evidence. Admittedly even that type of evidence was not ready with the original petitioner and an adjournment was sought which was refused. Thereafter, the hearing of the case proceeded and at the conclusion of the hearing the petitioner desired to have a further opportunity to settle the matter with the municipal authorities and therefore the learned Judge reserved his judgment with a view to give the petitioner time to negotiate a settlement. When the matter was placed on board for judgment on 11-8-1969 another application was made seeking permission to lead oral evidence of persons who would depose to the area required by Municipal schools constructed during the relevant period between the two notifications i. e. between 1961 and 1964 in order to show that having regard to such area which was regarded as sufficient the present case was one of colourable exercise of power. The learned Judge rejected that application as in his view the hearing the case the had been concluded and he had reserved the judgment only to enable the petitioner to negotiate a settlement with the municipal authorities which it is desired to do and as such the petitioner was not entitled to make a second request for leading oral evidence. The learned Judge has also noted in his judgment that this type of case had not been even made out by the petitioner in the petition showing the area occupied by municipal schools during the relevant period i. e. between 1961 and 1964. He, therefore, rejected that request and proceeded to deliver his judgment. In the circumstances mentioned by the learned Judge we do not think that he was wrongly rejected the prayer made he has wrongly rejected the prayer made by the original petitioner to lead oral evidence in the case. In the absence of any material on record the learned Judge took the view that the petitioner had failed to establish that it was a case of colourable exercise of power and or that the purported acquisition was mala fide and we are of the view that the finding of the learned Judge in that behalf is correct.
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notifications in question should be regarded as creating an encumbrance in falling within Section 4 (2) of the Act.We are not inclined to accept this submission of Mr. Dalal, for both the requirements are satisfied for applying the rule of ejusdem generis but even if the phrase all other incumbrances occurring insubsection (2) ofSection 4 were to be given a wide meaning by not confining it to types of encumbrances indicated earlier, still it is difficult to accept contention of Mr. Dalla that the notifications in question constitute or create an encumbrance on the land in11 ) THERE is yet another aspect of the matter which will have a bearing on the question under consideration. The sole object or the intention of making provision likesubsection (2) ofSection 4 of the Act appears to be that all property of the sick textile undertaking should vest in the Central Government freed and discharged from encumbrances. In other words, whatever encumbrances that might be subsisting on the property should no longer bind the Central Government or the Textile Corporation which should be free to deal with it thereafter as it likes and if that be the real object or intention ofsubsection (2) of4. then clearly the liability of being acquired that gets attached to the land by reason of the issuance of the notifications under the land Acquisition Act was never intended to be covered by the expression all other incumbrances occurring insubsection (2) ofSection 4. Assuming that this land got vested in the Central Government and thereafter in the National textile Corporation under Section 3 read with Section 4 (2) freed from the aforesaid burden or liability of being acquired. it was not disputed before us by mr. Dalal that it was open to the appropriate Government immediately thereafter to acquire that very land by issuing fresh notifications under Section 4 and Section 6 of the Land Acquisition Act and we do not see any hurdle in the appropriate Government acquiring the very land after the same got so vested in the National Textile Corporation under Section 3 of the Act. If, therefore, after the property had vested in the national Textile Corporation the same could be acquired by appropriate Government we fall to understand as to what purpose could be achieved by holding that the earlier notifications issued under the Land acquisition Act created an encumbrance which the National Textile Corporation got rid of underSubsection (2) of Section4 of the Act No. 57 of 1974. Looking at the question from his angle, we are of the view that the phrase all other incumbrances occurring insubsection (2) ofSection 4 cannot include any such burden or liability to which the land is subjected by reason of issuance of notification under Section 4 or Section 6 of the Land Acquisition12 ) IN this view of the matter it is clear to us that the provisions of Section 4 (2)of the Act cannot be availed of by the appellant before us for the purpose of contending that the Notifications in question in ceased to be effective qua the land in question and, therefore , the contention of Mr. Dalla must13 ) AS regards the other contention we do not agree that the learned Judge was in error in rejecting the applications of the original petitioner to lead oral evidence in support of its case that the purported acquisition was by way of colourable exercise of power or mala fide. Initially an application was made for permission to lead oral evidence in support of that plea onbut the type of evidence that was offered at that time was the evidence that the offered at that time was the evidence of an expert which would have been in the nature of opinion evidence. The learned Judge, therefore , by his order dateddeclined to give permission to the original petitioner to lead that type of evidence. Admittedly even that type of evidence was not ready with the original petitioner and an adjournment was sought which was refused. Thereafter, the hearing of the case proceeded and at the conclusion of the hearing the petitioner desired to have a further opportunity to settle the matter with the municipal authorities and therefore the learned Judge reserved his judgment with a view to give the petitioner time to negotiate a settlement. When the matter was placed on board for judgment onanother application was made seeking permission to lead oral evidence of persons who would depose to the area required by Municipal schools constructed during the relevant period between the two notifications i. e. between 1961 and 1964 in order to show that having regard to such area which was regarded as sufficient the present case was one of colourable exercise of power. The learned Judge rejected that application as in his view the hearing the case the had been concluded and he had reserved the judgment only to enable the petitioner to negotiate a settlement with the municipal authorities which it is desired to do and as such the petitioner was not entitled to make a second request for leading oral evidence. The learned Judge has also noted in his judgment that this type of case had not been even made out by the petitioner in the petition showing the area occupied by municipal schools during the relevant period i. e. between 1961 and 1964. He, therefore, rejected that request and proceeded to deliver his judgment. In the circumstances mentioned by the learned Judge we do not think that he was wrongly rejected the prayer made he has wrongly rejected the prayer made by the original petitioner to lead oral evidence in the case. In the absence of any material on record the learned Judge took the view that the petitioner had failed to establish that it was a case of colourable exercise of power and or that the purported acquisition was mala fide and we are of the view that the finding of the learned Judge in that behalf is correct.
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Akshay N Patel Vs. Reserve Bank of India & Anr | is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc. 56. Regulating the economy is reflective of the compromise between the interests of private commercial actors and the democratic State that represents and protects the interests of the collective. Scholars across the world have warned against the judiciary constitutionalising an unregulated marketplace (Robert Post & Amanda Shanor, Adam Smiths First Amendment, 128 HARVARD LAW REVIEW FORUM 165, 167 (2015), available at <https://harvardlawreview.org/2015/03/adam-smiths-first-amendment/>). This Court must be bound by a similar obligation, in order to preserve its fidelity to the Constitution. With the transformation in the economy, the Courts must also be alive to the socio-economic milieu. The right to equality and the freedom to carry on ones trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors. This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public. 57. In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks (as noted in Sections C.2 and C.3). As a developing country with a sizeable population, RBIs policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned. Thus, this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic. This deference is by no means uncritical. In fact, one of us (Justice D Y Chandrachud), in a three-judge Bench of this Court in Gujarat Mazdoor Sabha v. State of Gujarat (2020) 10 SCC 459 had decried the States tenuous claim of a public health emergency to dilute welfare conditions in labour laws. This Court had stressed that balancing individual rights against measures adopted to combat the public health crisis must continue to satisfy the test of proportionality. Justice D Y Chandrachud noted: 30. Even if we were to accept the respondents argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the Covid-19 Pandemic does not qualify as an internal disturbance threatening the security of the State. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005. [ Ministry of Home Affairs, Order No. 40-3/2020-DM- I(A) dated 24-3-2020.] However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country. The economic hardships caused by Covid-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case. […] 40. The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the State administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats. Thus, it is not this Courts stance that judicial review is stowed in cold storage until a public health crisis tides over. This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic. Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few. D. Conclusion | 1[ds]10. The appellant is a citizen of India. He is also the Managing Director of Anzalp Herbal Products Private Limited, a corporate body which inter alia, engages in MTTs. In State Trading Corporation v. Commercial Tax Officer AIR 1963 SC 1811 , a nine-judge Bench of this Court has settled the question that corporations are not considered as citizens under the Constitution. A corporation cannot claim an infringement of rights under Article 19(1)(g), as this fundamental right is only available to citizens and not to juristic persons. Over the years, shareholders and business persons have filed petitions in their individual capacity, to allege infringement of their fundamental right to carry on business or a profession of their choice [M P Jain, Citizenship, in INDIAN CONSTITUTIONAL LAW (7th edn, Lexis Nexis, 2014)].In Chintaman Rao v. State of Madhya Pradesh AIR 1951 SC 118 , a Constitution Bench noted the importance of striking the right balance between social control and individual freedom. Justice K C Das Gupta articulated the limitation under Article 19(6) in the following terms:6. The phrase reasonable restriction connotes that the limitation imposed on a person in enjoyment of the right should not be arbitrary or of an excessive nature, beyond what is required in the interests of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation which arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness and unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.13. In M R F Ltd. v. Inspector Kerala Government (1998) 8 SCC 227, a two judge Bench of this Court consolidated the body of precedent of this Court on Article 19(1)(g). Justice S Saghir Ahmed noted the following principles that govern the restrictions under Article 19(6):(1) While considering the reasonableness of the restrictions, the court has to keep in mind the Directive Principles of State Policy.(2) Restrictions must not be arbitrary or of an excessive nature so as to go beyond the requirement of the interest of the general public.(3) In order to judge the reasonableness of the restrictions, no abstract or general pattern or a fixed principle can be laid down so as to be of universal application and the same will vary from case to case as also with regard to changing conditions, values of human life, social philosophy of the Constitution, prevailing conditions and the surrounding circumstances.(4) A just balance has to be struck between the restrictions imposed and the social control envisaged by clause (6) of Article 19.(5) Prevailing social values as also social needs which are intended to be satisfied by restrictions have to be borne in mind. (See: State of U.P. v. Kaushailiya [AIR 1964 SC 416 : (1964) 4 SCR 1002 ] .)(6) There must be a direct and proximate nexus or a reasonable connection between the restrictions imposed and the object sought to be achieved. If there is a direct nexus between the restrictions and the object of the Act, then a strong presumption in favour of the constitutionality of the Act will naturally arise. (See: Kavalappara Kottarathil Kochuni v. States of Madras and Kerala [AIR 1960 SC 1080 : (1960) 3 SCR 887 ] ; O.K. Ghosh v. E.X. Joseph [AIR 1963 SC 812 : 1963 Supp (1) SCR 789 : (1962) 2 LLJ 615 ] .)The decision of a nine-judge Bench of this Court in K S Puttaswamy v. Union of India (2017) 10 SCC 1, para 325 (K S Puttaswamy (9J)) prescribed a proportionality analysis for determining violations of fundamental rights under Part III. A proportionality analysis can adequately consider the constitutionality of prohibitive measures on commercial activities. Therefore, we will structure the judgment on an analysis of the proportionality of RBIs decision to prohibit MTTs in PPE products, in order to determine its constitutionality.17. A Constitution Bench, in Modern Dental College and Research Centre v. State of Madhya Pradesh (2016) 7 SCC 353 (Modern Dental College), validated the test of proportionality for determining the reasonableness of a restriction under Article 19(6). Justice A K Sikri accepted the Canadian Supreme Courts analysis of the doctrine of proportionality and held it to be applicable to constitutional rights in India. The Court noted:63. In this direction, the next question that arises is as to what criteria is to be adopted for a proper balance between the two facets viz. the rights and limitations imposed upon it by a statute. Here comes the concept of proportionality, which is a proper criterion. To put it pithily, when a law limits a constitutional right, such a limitation is constitutional if it is proportional. The law imposing restrictions will be treated as proportional if it is meant to achieve a proper purpose, and if the measures taken to achieve such a purpose are rationally connected to the purpose, and such measures are necessary. This essence of doctrine of proportionality is beautifully captured by Dickson, C.J. of Canada in R. v. Oakes [R.v. Oakes, (1986) 1 SCR 103 (Can SC)] , in the following words (at p. 138):To establish that a limit is reasonable and demonstrably justified in a free and democratic society, two central criteria must be satisfied. First, the objective, which the measures, responsible for a limit on a Charter right or freedom are designed to serve, must be of sufficient importance to warrant overriding a constitutional protected right or freedom … Second … the party invoking Section 1 must show that the means chosen are reasonable and demonstrably justified. This involves a form of proportionality test… Although the nature of the proportionality test will vary depending on the circumstances, in each case courts will be required to balance the interests of society with those of individuals and groups. There are, in my view, three important components of a proportionality test. First, the measures adopted must be … rationally connected to the objective. Second, the means … should impair as little as possible the right or freedom in question … Third, there must be a proportionality between the effects of the measures which are responsible for limiting the Charter right or freedom, and the objective which has been identified as of sufficient importance. The more severe the deleterious effects of a measure, the more important the objective must be if the measure is to be reasonable and demonstrably justified in a free and democratic society.64. The exercise which, therefore, is to be taken is to find out as to whether the limitation of constitutional rights is for a purpose that is reasonable and necessary in a democratic society and such an exercise involves the weighing up of competitive values, and ultimately an assessment based on proportionality i.e. balancing of different interests.18. The decision in K S Puttaswamy (9J) (Para 325) (supra) introduced the proportionality standard in determining violations of fundamental rights, particularly the right to privacy. This doctrine was affirmed in the judgments of five out of the nine judges on the Bench. Subsequently, a Constitution Bench in K S Puttaswamy v. Union of India (2019) 1 SCC 1 (Aadhar (5J)) fleshed out the contours of a proportionality analysis and applied it to determine the constitutionality of the Aadhar Scheme and the Aadhar Act 2016. Justice A K Sikri conducted a comparative analysis of the types of proportionality analysis globally and elucidated a four-pronged approach that could be suitable for the Indian Constitution. This test was laid down in the following terms:319. …This discussion brings out that following four sub- components of proportionality need to be satisfied:319.1. A measure restricting a right must have a legitimate goal (legitimate goal stage).319.2. It must be a suitable means of furthering this goal (suitability or rational connection stage).319.3. There must not be any less restrictive but equally effective alternative (necessity stage).319.4. The measure must not have a disproportionate impact on the right holder (balancing stage).19. This Court has thus propounded a four-pronged test of proportionality. This can now be utilised to determine the constitutionality of Clause 2(iii) of the 2020 MTT Guidelines.As noted in Aadhar (5J) (supra), the use of proportionality analysis reflects the shift from a culture of authority to a culture of justification (Para 1276) where State action is best held accountable for its violation of fundamental rights. Justice Albie Sachs, a judge of the Constitutional Court of South Africa, in his memoir The Strange Alchemy of Life and Law [Albie Sachs, The Strange Alchemy of Life and Law (Oxford University Press, 2009)], also described this shift from a culture of authority to a culture of justification in South Africa with the introduction of their Constitution:The negotiated revolution which saw South Africa move from being an authoritarian, racist state to becoming a constitutional democracy led Professor Etienne Mureinik to make a memorable statement as far as the character of legal adjudication was concerned. He pointed out that we were crossing a bridge from a culture of authority to a culture of justification…The implications for the judicial function turned out to be enormous. And it was our Court that was made responsible for guiding the legal community to embrace and internalize the necessary changes. Much more was involved than simply making a technical shift from what the lawyers call a literalist to a purposive approach to interpretation. The Constitution brought about a seachange in the very nature of the judicial function…[It] necessitated moving beyond an approach based on the application of purportedly inexorable rules towards accepting the duty in most matters for the judges to exercise constitutionally-controlled discretion. The transformation involved a journey from preoccupation with classification and strict adherence to formal rules to focussing on principled modes of weighing up the competing interests as triggered by the facts of the case and assessed in the light of the values of an open and democratic society…Therefore, this Court must unhesitatingly use the proportionality analysis while assessing the violation of the appellants rights under Articles 14, 19(1)(g) and 21.It is a settled principle that fundamental rights in Part III are not understood in silos, but as an inter-related enunciation of rights and freedoms that uphold the basic rubric of human rights. An eleven-judge Bench of this Court in Rustom Cavasji Cooper v. Union of India (1970) 1 SCC 248, speaking through Justice J C Shah, had observed:52…it is necessary to bear in mind the enunciation of the guarantee of fundamental rights which has taken different forms. In some cases it is an express declaration of a guaranteed right: Articles 29(1), 30(1), 26, 25 and 32; in others to ensure protection of individual rights they take specific forms of restrictions on State action — legislative or executive — Articles 14, 15, 16, 20, 21, 22(1), 27 and 28; in some others, it takes the form of a positive declaration and simultaneously enunciates the restriction thereon: Articles 19(1) and 19(2) to (6); in some cases, it arises as an implication from the delimitation of the authority of the State, e.g. Articles 31(1) and 31(2); in still others, it takes the form of a general prohibition against the State as well as others: Articles 17, 23 and 24. The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.26. Conceptualising constitutional rights is incomplete without analysing their corresponding limitations. This Court has also noticed that an underlying thread of reasonableness defines fundamental rights in Part III of the Constitution. A Constitution Bench in Shayara Bano v. Union of India (2017) 9 SCC 1 disavowed the view that challenges under every Article must strictly be considered in a disjoint, water-tight fashion. Justice Kurian Joseph had observed:84. The second reason given is that a challenge under Article 14 has to be viewed separately from a challenge under Article 19, which is a reiteration of the point of view of A.K. Gopalan v. State of Madras [A.K. Gopalan v. State of Madras, 1950 SCR 88 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383] that fundamental rights must be seen in watertight compartments. We have seen how this view was upset by an eleven-Judge Bench of this Court in Rustom Cavasjee Cooper v. Union of India[Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248] and followed in Maneka Gandhi [Maneka Gandhi v. Union of India, (1978) 1 SCC 248] . Arbitrariness in legislation is very much a facet of unreasonableness in Articles 19(2) to (6), as has been laid down in several judgments of this Court, some of which are referred to in Om Kumar [Om Kumar v. Union of India, (2001) 2 SCC 386 : 2001 SCC (L&S) 1039] and, therefore, there is no reason why arbitrariness cannot be used in the aforesaid sense to strike down legislation under Article 14 as well.87. The thread of reasonableness runs through the entire fundamental rights chapter. What is manifestly arbitrary is obviously unreasonable and being contrary to the rule of law, would violate Article 14. Further, there is an apparent contradiction in the three-Judge Bench decision in McDowell [State of A.P. v. McDowell and Co., (1996) 3 SCC 709] when it is said that a constitutional challenge can succeed on the ground that a law is disproportionate, excessive or unreasonable, yet such challenge would fail on the very ground of the law being unreasonable, unnecessary or unwarranted. The arbitrariness doctrine when applied to legislation obviously would not involve the latter challenge but would only involve a law being disproportionate, excessive or otherwise being manifestly unreasonable. All the aforesaid grounds, therefore, do not seek to differentiate between State action in its various forms, all of which are interdicted if they fall foul of the fundamental rights guaranteed to persons and citizens in Part III of the Constitution.27. The Constitution Bench in Aadhar (5J) (supra) also undertook an integrated proportionality analysis to determine the proportionality of the States interference in the rights to privacy, dignity, choice and access to basic entitlements (Para 1277). Hence, the Court can adopt an integrated proportionality analysis where the limitation on each of the rights is common and affects them in a similar way. In the present case, the limitation (i.e., Clause 2(iii) of the 2020 MTT Guidelines) is what affects the appellants rights under Articles 14, 19(1)(g) and 21. Further, the appellant has submitted that the limitation is arbitrary, not a reasonable restriction and violative of his liberty because the RBI has, without application of mind, linked the prohibition on import/export of a product to the prohibition of MTTs in relation to that product. It is thus clear that the appellants submissions for challenging the constitutionality of Clause 2(iii) rest on similar grounds, and hence an integrated proportionality analysis can be adopted. However, this Court must issue a note of caution – while an integrated proportionality analysis has been adopted for assessing the limitation on rights (under Articles 14, 19(1)(g) and 21) in this case, it may not be true for all cases where such limitations occur because the alleged violation of rights may be characteristically different or the alleged limitation may affect the rights in different ways.29. This prong of the test entails an evaluation of the legitimacy of an aim that purportedly violates a fundamental right. The measure must be designated for a proper purpose, i.e., a legitimate goal. Five of the judges in the nine-judge Bench decision in K S Puttaswamy (9J) (supra) adopted the threshold of a legitimate state interest as the first prong for assessing proportionality. This state interest must also be of sufficient importance to override a constitutional right or freedom (Aadhar (5J) (supra), paras 321-322). In this case, the ban on exports, imports and MTTs of PPE products is to ensure the availability of adequate domestic supplies during a global health pandemic. Adequate stocks of PPE products are critical for the healthcare system to combat the COVID-19 pandemic. The States aim of ensuring supplies is in furtherance of the right to life under Article 21 and the Directive Principles of State Policy mandating the States improvement of public health as a primary duty under Article 47. The appellant has not challenged the legitimacy of this aim of ensuring adequate PPE in India. The RBI, at the time of filing its affidavit on 30 January 2021, had elaborated on the state of the pandemic in the country and the necessity of ensuring adequate stock of PPE products. The executives aim to ensure sufficient availability of PPE products, considering the ongoing pandemic, is legitimate. Accordingly, we hold that the impugned measure is enacted in furtherance of a legitimate aim that is of sufficient importance to override a constitutional right of freedom to conduct business.On an analysis of the above circulars, it is clear that the RBI has never attempted to permit/prohibit MTTs into specific goods. Rather, from the very first circular, it has relied upon the goods position under Indias FTP to regulate MTTs. Till 2013, MTTs were prohibited in relation to goods whose import was not allowed under the FTP. Since 2013, they have also been prohibited in relation to goods whose export is not allowed under the FTP.From the above extract, the following salient features of MTTs emerge: (i) the original supplier and ultimate buyer of the goods are foreign entities, with the Indian entity acting as an intermediary between them; (ii) the goods do not enter the territory of India while shifting hands between the supplier and the buyer; (iii) Indian foreign reserves are implicated when payment is remitted outside India when the Indian entity initially pays the supplier for the goods; and (iv) foreign exchange is remitted to India when the Indian entity receives the payment from the buyer of the goods.It is evident that the role of an intermediary in MTTs was earlier only considered as providing a service. However, this has now evolved, where the intermediary is considered to be the owner of the goods during their transit from the supplier to the buyer. Hence, goods under MTTs are recorded as negative and positive exports from the intermediarys resident country, even when they never physically enter their territory.44. Therefore, the international opinion favours the position taken by the respondents that MTTs are analogous to traditional imports and exports. Therefore, it was suitable for the RBI to link the permissibility of MTT in goods to the permissibility of their import/export under the FTP. As noted earlier, the appellant has not challenged notifications prohibiting the export of PPE products under the FTP. Hence, the prohibition of their MTT under Clause 2(iii) of the 2020 MTT Guidelines is also considered suitable.In any event, the appellant has argued that a less-intrusive alternative would be to ban MTTs only for goods whose imports have been prohibited under the FTP or allow individuals to seek exemptions from the RBI in relation to goods whose import/export has been prohibited by the FTP where the RBI can assess, on a case- by-case basis, whether their MTT should also be prohibited. While these measures have been suggested on a general basis, the appellant has limited his challenge in the present case only to the prohibition of PPE products. Hence, we shall be limiting our analysis in relation to that.47. Having considered the nature of MTTs in Section C.2, we reject the appellants arguments for two reasons. First, while MTTs in PPE products may not directly reduce the stock of these products in India, it still does contribute to their trade between two foreign nations. In doing so, it directly reduces the available quantity of PPE products in the international market, which may have been bought by India, if so required. As such, MTTs contribute to reducing the available stock of PPE products in the international market that India could have acquired. Second, the UOIs policy to ban the export of PPE products reflects their stance on the products non-tradability during the COVID-19 pandemic. It highlights a clear policy choice under which Indian entities shall not be allowed to export these products outside of India, in all probability to the highest buyers across the globe who may end up hoarding the global supply. Hence, banning MTTs in PPE products was critical in ensuring that Indian foreign exchange reserves are not utilized to facilitate the hoarding of PPE products with wealthier nations. A mere ban on exports would not regulate the utilisation of Indian foreign exchange. Hence, in order to keep Indias policy position consistent across the board, the prohibition of MTTs in respect of PPE products was necessary and the only alternative of ensuring the realisation of legitimate State interest.48. The fourth and final prong of the proportionality analysis involves the crucial task of conducting a balancing exercise. The Court is called upon to legitimise the social importance of the limitation on a constitutional right (Aadhar (5J) (supra), paras 335 and 369). A measure that fails to justify its existence on this prong is considered to have a disproportionate impact on the right-holder (Ibid).51. A Constitution Bench in Joseph Kuruvilla Vellukunnel v. Reserve Bank of India AIR 1962 SC 1371 considered a challenge to certain statutory provisions introduced in the Banking Companies Act 1949 which vested the RBI with the powers to file an application for winding-up of any company. Before conducting an analysis of the constitutional challenge under Articles 14 and 19, the Constitution Bench prefaced its analysis with the raison detre and importance of the RBI as a regulatory body. Justice M Hidayatullah (as the learned Chief Justice then was) observed the following:16. Before we consider the arguments of the two sides in detail, we wish to say a few words about the position of the Reserve Bank in the financial affairs of India and also about its place in the scheme of the law. The Reserve Bank of India was established on April 1, 1935 by the Reserve Bank of India Act, 1934. Even before the establishment of the Reserve Bank, suggestions were made that there should be a central bank in India, and the Royal Commission on Indian Currency and Finance had recommended in 1926 that the currency and credit of the country could only be put on a firm foundation, if a central bank was established. The first Bill introduced in 1927 by Sir Basil Blackett was dropped. The Indian Central Banking Inquiry Committee, however, reported in 1931 that there was a need for a central banking institution in India for securing the development of the Indian banking and credit system on a sound and proper basis. The Committee pointed out that some of the Provincial Committees had also suggested the establishment of the Reserve Bank. The Committee ended by saying:We accordingly consider it to be a matter of supreme importance from the point of view of the development of banking facilities in India, and of her economic advancement generally, that a Central or Reserve Bank should be created at the earliest possible date. The establishment of such a bank would by mobilization of the banking and currency reserves of India in one hand tend to increase the Vol. of credit available for trade, industry and agriculture and to mitigate the evils of fluctuating and high charges for the use of such credit caused by seasonal stringency. (Vol. I, Part I. Chap. XXII, para 605)The White Paper on Indian Constitutional Reforms also recommended the establishment of a Reserve Bank free from political influence. As a result of these findings, when a fresh Bill was introduced by Sir George Schuster on September 8, 1933 it was accepted and received the assent of the Governor-General on March 6, 1934.17. The functions of the Reserve Bank were generally indicated in the preamble as the regulation of the issue of the Bank notes and the keeping of the reserves with a view to securing monetary stability in India and generally to operate the currency and credit system of the country to its advantage. But to enable the Reserve Bank to function in this manner, it had to be given other powers, so that it may function effectively as a central bank. To this end, the Reserve Bank was given the right to hold the cash balances of important commercial banks, a right to transact Government business in India which was also its obligation, and to enter into agreements with State Governments to transact their business.18. But the most important function of the Reserve Bank is to regulate the banking system generally. The Reserve Bank has been described as a Bankers Bank. Under the Reserve Bank of India Act, the scheduled banks maintain certain balances and the Reserve Bank can lend assistance to those banks as a lender of the last resort. The Reserve Bank has also been given certain advisory and regulatory functions. By its position as a central bank, it acts as an agency for collecting financial information and statistics. It advises Government and other banks on financial and banking matters, and for this purpose, it keeps itself informed of the activities and monetary position of scheduled and other banks, and inspects the books and accounts of scheduled banks and advises Government after inspection whether a particular bank should be included in the Second Schedule or not. […..]52. A two-judge Bench of this Court in Peerless General Finance and Investment Co. Limited v. Reserve Bank of India (1992) 2 SCC 343 considered an alleged constitutional infringement of Article 19(1)(g) in the context of RBIs regulation of savings schemes run by Residuary Non-Banking Companies. The thrust of the impugned regulation was to regulate deposit investment schemes issued by Residuary Non-Banking Companies, in order to ensure the security of deposits made by consumers. Justice N M Kasliwal elaborated on the role of the Courts with specific reference to the regulatory powers of the RBI. The decision highlighted the importance of judicial abstinence from matters of economic policy requiring expertise:30. Before examining the scope and effect of the impugned paragraphs (6) and (12) of the directions of 1987, it is also important to note that Reserve Bank of India which is bankers bank is a creature of statute. It has large contingent of expert advice relating to matters affecting the economy of the entire country and nobody can doubt the bona fides of the Reserve Bank in issuing the impugned directions of 1987. The Reserve Bank plays an important role in the economy and financial affairs of India and one of its important functions is to regulate the banking system in the country. It is the duty of the Reserve Bank to safeguard the economy and financial stability of the country [….]31. The function of the Court is to see that lawful authority is not abused but not to appropriate to itself the task entrusted to that authority. It is well settled that a public body invested with statutory powers must take care not to exceed or abuse its power. It must keep within the limits of the authority committed to it. It must act in good faith and it must act reasonably. Courts are not to interfere with economic policy which is the function of experts. It is not the function of the courts to sit in judgment over matters of economic policy and it must necessarily be left to the expert bodies. In such matters even experts can seriously and doubtlessly differ. Courts cannot be expected to decide them without even the aid of experts.In his concurring opinion, Justice V Ramaswamy noted the statutory importance of the RBI and held that directions validly issued by the RBI are in the nature of statutory regulations:51. This Court in Joseph Kuruvilla Vellukunnel v. Reserve Bank of India [1962 Supp 3 SCR 632 : AIR 1962 SC 1371 : (1962) 32 Comp Cas 514] held that the RBI is a bankers bank and lender of the last resort. Its objective is to ensure monetary stability in India and to operate and regulate the credit system of the country. It has, therefore, to perform a delicate balance between the need to preserve and maintain the credit structure of the country by strengthening the rule as well as apparent creditworthiness of the banks operating in the country and the interest of the depositors. In underdeveloped country like ours, where majority population are illiterate and poor and are not conversant with banking operations and in underdeveloped money and capital market with mixed economy, the Constitution charges the State to prevent exploitation and so the RBI would play both promotional and regulatory roles. Thus the RBI occupies place of pre-eminence to ensure monetary discipline and to regulate the economy or the credit system of the country as an expert body. It also advices the government in public finance and monetary regulations. The banks or non-banking institutions shall have to regulate their operations in accordance with, not only as per the provisions of the Act but also the rules and directions or instructions issued by the RBI in exercise of the power thereunder. Chapter 3-B expressly deals with regulations of deposit and finance received by the RNBCs. The directions, therefore, are statutory regulations.65. No one can have fundamental right to do any unregulated business with the subscribers/depositors money. [….]Thus there is a reasonable nexus between the regulation and the public purpose, namely, security to the depositors money and the right to repayment without any impediment, which undoubtedly is in the public interest.Justice V Ramaswamy further articulated the role of judicial review in matters of economic legislation and the democratic necessity of judicial abstinence:68. It is well settled that the court is not a tribunal from the crudities and inequities of complicated experimental economic legislation. The discretion in evolving economic measures, rests with the policy makers and not with the judiciary. Indian social order is beset with social and economic inequalities and of status, and in our socialist secular democratic Republic, inequality is an anathema to social and economic justice. The Constitution of India charges the State to reduce inequalities and ensure decent standard of life and economic equality. The Act assigns the power to the RBI to regulate monetary system and the experimentation of the economic legislation, can best be left to the executive unless it is found to be unrealistic or manifestly arbitrary. Even if a law is found wanting on trial, it is better that its defects should be demonstrated and removed than that the law should be aborted by judicial fiat. Such an assertion of judicial power deflects responsibilities from those on whom a democratic society ultimately rests. The Court has to see whether the scheme, measure or regulation adopted is relevant or appropriate to the power exercised by the authority. Prejudice to the interest of depositors is a relevant factor. Mismanagement or inability to pay the accrued liabilities are evils sought to be remedied. The directions are designed to preserve the right of the depositors and the ability of RNBC to pay back the contracted liability. It is also intended to prevent mismanagement of the deposits collected from vulnerable social segments who have no knowledge of banking operations or credit system and repose unfounded blind faith on the company with fond hope of its ability to pay back the contracted amount. Thus the directions maintain the thrift for saving and streamline and strengthen the monetary operations of RNBCs.54. Thus, it is settled that the RBI is a special, expert regulatory body that is insulated from the political arena. Its decisions are reflective of its expertise in guiding the economic policy and financial stability of the nation. Adverting to the facts of this case, the RBI is empowered by FEMA to manage, regulate, and supervise the foreign exchange of India. It is trite law that courts do not interfere with the economic R K Garg v. Union of India, (1981) 4 SCC 675 ; Balco Employees Union v. Union of India, (2002) 2 SCC 333 or regulatory Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 ; Ebix Singapore v. Committee of Creditors of Educomp Solutions (P) Ltd., 2021 SCC OnLine SC 313 policy adopted by the government. This lack of interference is in deference to the democratically elected governments wisdom, reflecting the will of the people. As held by a three-judge Bench of this Court in Internet & Mobile Association (supra), the regulations introduced by RBI are in the nature of statutory regulation and demand a similar level of deference that is accorded to executive and Parliamentary policy.55. This Court must be circumspect that the rights and freedoms guaranteed under the Constitution do not become a weapon in the arsenal of private businesses to disable regulation enacted in the public interest. The Constituent Assembly Debates had carefully curated restrictions on rights and freedoms, in order to retain democratic control over the economy. Regulation must of course be within the bounds of the statute and in conformity with executive policy. A regulated economy is a critical facet of ensuring a balance between private business interests and the States role in ensuring a just polity for its citizens. The Constitution Bench in Modern Dental College (supra) had remarked on the role of regulatory mechanisms in liberalized economies. Speaking for the Bench, Justice A K Sikri had observed:87. Regulatory mechanism, or what is called regulatory economics, is the order of the day. In the last 60-70 years, economic policy of this country has travelled from laissez faire to mixed economy to the present era of liberal economy with regulatory regime. With the advent of mixed economy, there was mushrooming of the public sector and some of the key industries like aviation, insurance, railways, electricity/power, telecommunication, etc. were monopolised by the State. Licence/permit raj prevailed during this period with strict control of the Government even in respect of those industries where private sectors were allowed to operate. However, Indian economy experienced major policy changes in early 90s on LPG Model i.e. liberalisation, privatisation and globalisation. With the onset of reforms to liberalise the Indian economy, in July 1991, a new chapter has dawned for India. This period of economic transition has had a tremendous impact on the overall economic development of almost all major sectors of the economy.88. When we have a liberal economy which is regulated by the market forces (that is why it is also termed as market economy), prices of goods and services in such an economy are determined in a free price system set up by supply and demand. This is often contrasted with a planned economy in which a Central Government determines the price of goods and services using a fixed price system. Market economies are also contrasted with mixed economy where the price system is not entirely free, but under some government control or heavily regulated, which is sometimes combined with State led economic planning that is not extensive enough to constitute a planned economy.89. With the advent of globalisation and liberalisation, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc.57. In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks (as noted in Sections C.2 and C.3). As a developing country with a sizeable population, RBIs policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned. Thus, this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic. This deference is by no means uncritical. In fact, one of us (Justice D Y Chandrachud), in a three-judge Bench of this Court in Gujarat Mazdoor Sabha v. State of Gujarat (2020) 10 SCC 459 had decried the States tenuous claim of a public health emergency to dilute welfare conditions in labour laws. This Court had stressed that balancing individual rights against measures adopted to combat the public health crisis must continue to satisfy the test of proportionality. Justice D Y Chandrachud noted:30. Even if we were to accept the respondents argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the Covid-19 Pandemic does not qualify as an internal disturbance threatening the security of the State. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005. [ Ministry of Home Affairs, Order No. 40-3/2020-DM- I(A) dated 24-3-2020.] However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country. The economic hardships caused by Covid-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case.40. The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the State administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats.Thus, it is not this Courts stance that judicial review is stowed in cold storage until a public health crisis tides over. This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic. Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few. | 1 | 16,999 | 7,544 | ### 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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is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc. 56. Regulating the economy is reflective of the compromise between the interests of private commercial actors and the democratic State that represents and protects the interests of the collective. Scholars across the world have warned against the judiciary constitutionalising an unregulated marketplace (Robert Post & Amanda Shanor, Adam Smiths First Amendment, 128 HARVARD LAW REVIEW FORUM 165, 167 (2015), available at <https://harvardlawreview.org/2015/03/adam-smiths-first-amendment/>). This Court must be bound by a similar obligation, in order to preserve its fidelity to the Constitution. With the transformation in the economy, the Courts must also be alive to the socio-economic milieu. The right to equality and the freedom to carry on ones trade cannot inhere a right to evade or avoid regulation. In liberalized economies, regulatory mechanisms represent democratic interests of setting the terms of operation for private economic actors. This Court does not espouse shunning of judicial review when actions of regulatory bodies are questioned. Rather, it implores intelligent care in probing the bona fides of such action and nuanced deference to their expertise in formulating regulations. A casual invalidation of regulatory action in the garb of upholding fundamental rights and freedoms, without a careful evaluation of its objective of social and economic control, would harm the general interests of the public. 57. In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks (as noted in Sections C.2 and C.3). As a developing country with a sizeable population, RBIs policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned. Thus, this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic. This deference is by no means uncritical. In fact, one of us (Justice D Y Chandrachud), in a three-judge Bench of this Court in Gujarat Mazdoor Sabha v. State of Gujarat (2020) 10 SCC 459 had decried the States tenuous claim of a public health emergency to dilute welfare conditions in labour laws. This Court had stressed that balancing individual rights against measures adopted to combat the public health crisis must continue to satisfy the test of proportionality. Justice D Y Chandrachud noted: 30. Even if we were to accept the respondents argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the Covid-19 Pandemic does not qualify as an internal disturbance threatening the security of the State. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005. [ Ministry of Home Affairs, Order No. 40-3/2020-DM- I(A) dated 24-3-2020.] However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country. The economic hardships caused by Covid-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case. […] 40. The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the State administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats. Thus, it is not this Courts stance that judicial review is stowed in cold storage until a public health crisis tides over. This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic. Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few. D. Conclusion
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during this period with strict control of the Government even in respect of those industries where private sectors were allowed to operate. However, Indian economy experienced major policy changes in early 90s on LPG Model i.e. liberalisation, privatisation and globalisation. With the onset of reforms to liberalise the Indian economy, in July 1991, a new chapter has dawned for India. This period of economic transition has had a tremendous impact on the overall economic development of almost all major sectors of the economy.88. When we have a liberal economy which is regulated by the market forces (that is why it is also termed as market economy), prices of goods and services in such an economy are determined in a free price system set up by supply and demand. This is often contrasted with a planned economy in which a Central Government determines the price of goods and services using a fixed price system. Market economies are also contrasted with mixed economy where the price system is not entirely free, but under some government control or heavily regulated, which is sometimes combined with State led economic planning that is not extensive enough to constitute a planned economy.89. With the advent of globalisation and liberalisation, though the market economy is restored, at the same time, it is also felt that market economies should not exist in pure form. Some regulation of the various industries is required rather than allowing self-regulation by market forces. This intervention through regulatory bodies, particularly in pricing, is considered necessary for the welfare of the society and the economists point out that such regulatory economy does not rob the character of a market economy which still remains a market economy. Justification for regulatory bodies even in such industries managed by private sector lies in the welfare of people. Regulatory measures are felt necessary to promote basic well being for individuals in need. It is because of this reason that we find regulatory bodies in all vital industries like, insurance, electricity and power, telecommunications, etc.57. In the instant case, the RBI has demonstrated a rational nexus in the prohibition of MTTs in respect of PPE products and the public health of Indian citizens. The critical links between FTP and MTTs have been established by the respondents. Facilitating MTTs in PPE products between two distinct nations may prima facie appear as having no bearing on the availability of domestic stocks. However, the RBI has carefully established the connection between the use of Indian foreign exchange reserves, MTTs and the availability of domestic stocks (as noted in Sections C.2 and C.3). As a developing country with a sizeable population, RBIs policy to align MTT permissibility with the FTP restrictions on import and export of PPE products cannot be questioned. Thus, this Court is constrained to defer to the regulations imposed by RBI and the UOI, in the interests of preserving public health in a pandemic. This deference is by no means uncritical. In fact, one of us (Justice D Y Chandrachud), in a three-judge Bench of this Court in Gujarat Mazdoor Sabha v. State of Gujarat (2020) 10 SCC 459 had decried the States tenuous claim of a public health emergency to dilute welfare conditions in labour laws. This Court had stressed that balancing individual rights against measures adopted to combat the public health crisis must continue to satisfy the test of proportionality. Justice D Y Chandrachud noted:30. Even if we were to accept the respondents argument at its highest, that the pandemic has resulted in an internal disturbance, we find that the economic slowdown created by the Covid-19 Pandemic does not qualify as an internal disturbance threatening the security of the State. The pandemic has put a severe burden on existing, particularly public health, infrastructure and has led to a sharp decline in economic activities. The Union Government has taken recourse to the provisions of the Disaster Management Act, 2005. [ Ministry of Home Affairs, Order No. 40-3/2020-DM- I(A) dated 24-3-2020.] However, it has not affected the security of India, or of a part of its territory in a manner that disturbs the peace and integrity of the country. The economic hardships caused by Covid-19 certainly pose unprecedented challenges to governance. However, such challenges are to be resolved by the State Governments within the domain of their functioning under the law, in coordination with the Central Government. Unless the threshold of an economic hardship is so extreme that it leads to disruption of public order and threatens the security of India or of a part of its territory, recourse cannot be taken to such emergency powers which are to be used sparingly under the law. Recourse can be taken to them only when the conditions requisite for a valid exercise of statutory power exist under Section 5. That is absent in the present case.40. The need for protecting labour welfare on one hand and combating a public health crisis occasioned by the pandemic on the other may require careful balances. But these balances must accord with the rule of law. A statutory provision which conditions the grant of an exemption on stipulated conditions must be scrupulously observed. It cannot be interpreted to provide a free reign for the State to eliminate provisions promoting dignity and equity in the workplace in the face of novel challenges to the State administration, unless they bear an immediate nexus to ensuring the security of the State against the gravest of threats.Thus, it is not this Courts stance that judicial review is stowed in cold storage until a public health crisis tides over. This Court retains its role as the constitutional watchdog to protect against State excesses. It continues to exercise its role in determining the proportionality of a State measure, with adequate consideration of the nature and purpose of the extraordinary measures that are implemented to manage the pandemic. Democratic interests that secure the well-being of the masses cannot be judicially aborted to preserve the unfettered freedom to conduct business, of the few.
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Abdul Hamid And Ors Vs. Union Of India And Ors. The General Manager | the appointment of the appellants herein was subject to the final decision of the writ petitions.8. It is thus apparent that the appointment of the appellants was subject to the final result of the writ petitions. The writ petitions were finally dismissed on 5th December, 2007 but the persons appointed were allowed to continue for four months. The Railway administration filed a review petition but the same appears to have been rejected. The Railways accepted the order and judgment of the High Court and did not pursue the matter further. Thereafter, the Railways vide order dated 25.08.2008 discontinued/terminated the services of the fresh face substitutes/appellants. It is only then that the appellants filed the special leave petitions, which they were permitted to do. Leave was granted to file these appeals. Applications for intervention have also been filed by more than 300 other course completed qualified persons who have undergone apprenticeship training under the Railways.9. The first ground raised on behalf of the appellants is that since the fresh face substitutes/apprentices are appointed temporarily against short term vacancies, the Railways was well within its jurisdiction to limit the field of choice to those candidates who had undergone apprenticeship training with the Railways. In the alternative, it is submitted by Mr. R. Venkatramni, learned senior counsel appearing for the appellants that the appellants who have been working for more than 10 years, they should now be permitted to continue and, in this regard, he has relied upon a large number of circulars issued from time to time by the railway administration whereby fresh face substitutes have been regularized.10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts.11. Reliance has been placed by learned counsel appearing for the Railways trained apprentices on the judgment of this Court passed in the case of U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others, 1995(2) S.C.T. 367 : (1995) 2 SCC 1. In Para 12 of the judgement it has been held that all other things being equal, the trained apprentices should be given preference upon direct apprentices. This judgment does not help the appellants at all. What has been held is that if the non-Railway trained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word "preference" does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.12. As far as the second issue raised by Mr. R. Venkatramni, learned senior counsel is concerned, we may have sympathy with the appellants but we cannot direct that they be continued in service. The courts below held that they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that this limitation was placed.13. The appellants were well aware that their appointments made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders.14. At this stage, we may note that the learned Solicitor General had informed us that fresh regular recruitment for Group-D posts and other posts in Bikaner Division of the Railways is under process. On 24th August, 2017, 14 original applicants were granted age relaxation for a period of 13 years and they were permitted to appear in the selection process wherein their cases would be considered on merit. Mr. R. Venkatramni, learned senior counsel had sought time to take instructions from his clients in this regard. He now submits that his clients, having served for more than 10 years, are not in a position to appear in the test. | 1[ds]10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for thesejudgment does not help the appellants at all. What has been held is that if thetrained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word "preference" does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.12. As far as the second issue raised by Mr. R. Venkatramni, learned senior counsel is concerned, we may have sympathy with the appellants but we cannot direct that they be continued in service. The courts below held that they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that this limitation was placed.13. The appellants were well aware that their appointments made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders. | 1 | 1,991 | 590 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the appointment of the appellants herein was subject to the final decision of the writ petitions.8. It is thus apparent that the appointment of the appellants was subject to the final result of the writ petitions. The writ petitions were finally dismissed on 5th December, 2007 but the persons appointed were allowed to continue for four months. The Railway administration filed a review petition but the same appears to have been rejected. The Railways accepted the order and judgment of the High Court and did not pursue the matter further. Thereafter, the Railways vide order dated 25.08.2008 discontinued/terminated the services of the fresh face substitutes/appellants. It is only then that the appellants filed the special leave petitions, which they were permitted to do. Leave was granted to file these appeals. Applications for intervention have also been filed by more than 300 other course completed qualified persons who have undergone apprenticeship training under the Railways.9. The first ground raised on behalf of the appellants is that since the fresh face substitutes/apprentices are appointed temporarily against short term vacancies, the Railways was well within its jurisdiction to limit the field of choice to those candidates who had undergone apprenticeship training with the Railways. In the alternative, it is submitted by Mr. R. Venkatramni, learned senior counsel appearing for the appellants that the appellants who have been working for more than 10 years, they should now be permitted to continue and, in this regard, he has relied upon a large number of circulars issued from time to time by the railway administration whereby fresh face substitutes have been regularized.10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for these posts.11. Reliance has been placed by learned counsel appearing for the Railways trained apprentices on the judgment of this Court passed in the case of U.P. State Road Transport Corporation and Another v. U.P. Parivahan Nigam Shishukhs Berozgar Sangh and Others, 1995(2) S.C.T. 367 : (1995) 2 SCC 1. In Para 12 of the judgement it has been held that all other things being equal, the trained apprentices should be given preference upon direct apprentices. This judgment does not help the appellants at all. What has been held is that if the non-Railway trained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word "preference" does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.12. As far as the second issue raised by Mr. R. Venkatramni, learned senior counsel is concerned, we may have sympathy with the appellants but we cannot direct that they be continued in service. The courts below held that they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that this limitation was placed.13. The appellants were well aware that their appointments made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders.14. At this stage, we may note that the learned Solicitor General had informed us that fresh regular recruitment for Group-D posts and other posts in Bikaner Division of the Railways is under process. On 24th August, 2017, 14 original applicants were granted age relaxation for a period of 13 years and they were permitted to appear in the selection process wherein their cases would be considered on merit. Mr. R. Venkatramni, learned senior counsel had sought time to take instructions from his clients in this regard. He now submits that his clients, having served for more than 10 years, are not in a position to appear in the test.
### Response:
1
### Explanation:
10. It is apparent that there is a policy of the Railways to grant regularization to these fresh face substitutes. We need not refer to all the circulars issued in this behalf, but a perusal of the documents especially those filed as additional documents clearly show that the Railways has a policy of regularizing these fresh face substitutes. This, in our opinion, is a clear indicator that while making appointment of fresh face substitutes, the field of choice should be wide and all citizens who are qualified and eligible should be given a chance to take part in the selection process. Though these appointments may be termed as short term appointments, the facts placed on record reveal that thousands of fresh face substitutes have been regularized and have become employees of the Railways because of the policy of the Railways. It is, therefore, imperative that while appointing fresh face substitutes, a transparent system of appointment is followed. It would be much better if the Railways follows the regular system of appointment rather than making appointments on ad hoc basis of fresh face substitutes. However, as and when exigencies of service require that fresh face substitutes have to be appointed, then also the field of choice cannot be limited only to those who have undergone their apprenticeship training with the Railways since that would patently violate Article 14 and 16 of the Constitution of India depriving those who have not undergone apprenticeship training with the Railways of an equal opportunity for applying for thesejudgment does not help the appellants at all. What has been held is that if thetrained apprentice is equal to the Railways trained apprentice on merit, then preference can be given to the Railways trained apprentice. The word "preference" does not mean that the Railways trained apprentice will have an exclusive right to the exclusion of all others to be considered for appointment. Both the Tribunal and the High Court were justified in deciding this issue against the Railways and in favour of the original applicants.12. As far as the second issue raised by Mr. R. Venkatramni, learned senior counsel is concerned, we may have sympathy with the appellants but we cannot direct that they be continued in service. The courts below held that they have been employed in violation of the general directions issued by the Railways from time to time wherein there is no restriction of limiting the field of choice to Railways trained apprenticeship. It is only in Bikaner Division of the Railways that this limitation was placed.13. The appellants were well aware that their appointments made when the original applications were pending before the Tribunal or when the writ petitions were pending before the High Court were subject to the result of the litigation. They did not choose to file any application for intervention before the High Court. After the Railways lost in the High Court and did not carry the matter further, they approached this Court. They were granted stay and have been continuing on the basis of the stay order. They knew that their fate depended upon the result of the litigation. Once their appeal is dismissed they cannot be permitted to be continued in employment only because they have been permitted to continue due to the interim orders.
|
C.C.E.,VADODARA Vs. GUJARAT NARMADA VALLEY FER. CO. LTD | allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms. 10. We have now to see the judgment of this Court in Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46. This judgment has only upheld two Tribunal judgments, one contained in Ballarpur Industries Ltd. (supra) and the other contained in Raymond Ltd. (supra). 11. When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?. 12. We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads as follows:?24. The schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCC 344.?Considering that the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us. 13. Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression ?in or in relation to the manufacturer of final products? and the definition of ?inputs? for the purpose of Rule 57A. Having gone into these two aspects of Rule 57A, para 15 then lays down the law as follows:-?15. In the present case, LSHS is used to generate electricity which is captively consumed. Without continuous supply of such electricity generated in the plant it is not possible to manufacture cement, caustic soda, etc. Without such supply the process of electrolysis was not possible. Therefore, keeping in mind the expression ? used in relation to the manufacture? in Rule 57-A we are of the view that the assessees were entitled to MODVAT credit on LSHS. In our opinion, the present case falls in Clause (c), therefore, the assessees were entitled to MODVAT credit under Explanation clause (c) even before 16-3-1995. Inputs used for generation of electricity will qualify for MODVAT credit only if they are used in or in relation to the manufacture of the final product, such as cement, caustic soda, etc. Therefore, it is not correct to state that inputs used as fuel for generation of electricity captively consumed will not be covered as inputs under Rule 57-A.?14. This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2). 15. This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct. | 1[ds]9. Thus, the finding of this Court restates an important principle under the CENVAT Credit Rules, and which is inbuilt in the structure of the CENVAT Credit scheme, which is that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products cannot be allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms.When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?.We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads asThe schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCCthat the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us.Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression?in or in relation to the manufacturer of final products?and the definition of ?inputs? for the purpose of Rule 57A.This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2).This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct. | 1 | 4,200 | 926 | ### 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:
allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms. 10. We have now to see the judgment of this Court in Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46. This judgment has only upheld two Tribunal judgments, one contained in Ballarpur Industries Ltd. (supra) and the other contained in Raymond Ltd. (supra). 11. When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?. 12. We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads as follows:?24. The schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCC 344.?Considering that the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us. 13. Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression ?in or in relation to the manufacturer of final products? and the definition of ?inputs? for the purpose of Rule 57A. Having gone into these two aspects of Rule 57A, para 15 then lays down the law as follows:-?15. In the present case, LSHS is used to generate electricity which is captively consumed. Without continuous supply of such electricity generated in the plant it is not possible to manufacture cement, caustic soda, etc. Without such supply the process of electrolysis was not possible. Therefore, keeping in mind the expression ? used in relation to the manufacture? in Rule 57-A we are of the view that the assessees were entitled to MODVAT credit on LSHS. In our opinion, the present case falls in Clause (c), therefore, the assessees were entitled to MODVAT credit under Explanation clause (c) even before 16-3-1995. Inputs used for generation of electricity will qualify for MODVAT credit only if they are used in or in relation to the manufacture of the final product, such as cement, caustic soda, etc. Therefore, it is not correct to state that inputs used as fuel for generation of electricity captively consumed will not be covered as inputs under Rule 57-A.?14. This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2). 15. This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct.
### Response:
1
### Explanation:
9. Thus, the finding of this Court restates an important principle under the CENVAT Credit Rules, and which is inbuilt in the structure of the CENVAT Credit scheme, which is that Cenvat credit for duty paid on inputs used in the manufacture of exempted final products cannot be allowed. It is only a reflection of this larger principle which is contained in Rule 6. When Rule 6(1) says that the CENVAT Credit shall not be allowed on such quantity of inputs which is used in the manufacture of exempted goods, it relies upon the definition of ?inputs? contained in these Rules which certainly include LSHS and steam and electricity that are produced in the manufacturing process utilizing LSHS. The exception that is contained in sub-rule (2) refers to all inputs except inputs intended to be used as fuel which then results in the manufacture of final products which are both chargeable to duty as well as exempted goods. What is clear is that the exception to sub-rule (1) which is contained in sub-rule (2) itself contains an exception, namely, inputs intended to be used as fuel. This being the case, the moment it is found that inputs are intended to be used as fuel, such inputs go outside the ken of sub-rule (2) of Rule 6. When this happens, the exception contained in sub-rule (2) does not come into effect at all as a result of which sub-rule (1) must be applied on its own terms.When we come to the judgment in Ballarpur Industries Ltd. (supra), the Tribunal was concerned with the interpretation of Rule 57A-D of the Central Excise Rules as they stood prior to 16.03.1995. The bone of contention in this case was that electricity not being excisable goods at all cannot be considered to be an intermediate product for the purpose of exempting from duty final products in which electricity is an intermediate product. The Tribunal held that fuel oils for generation of electricity which is used for manufacture of final products by the assessee is eligible to MODVAT credit in terms of Rule 57A. It can thus be seen that the issue in Ballarpur Industries Ltd. (supra) was different from the issue in the present case, as was Rule 57A-D of the MODVAT Rules being different from Rule 6 of the CENVAT Credit Rules. Equally, the judgment in Raymond Ltd. (supra) concerned itself with Rule 57A, C and D in which it construed the meaning of the expression ?for any other purpose? contained in Rule 57A in para 12. The ratio of this judgment is also therefore far removed from the facts of the present case as the present case does not deal with the expression ?for any other purpose?.We now come to the judgment of this Court in Vikram Cement vs. Commissioner of Central Excise, Indore, (2006) 2 SCC 351 , which was strongly relied upon by Mr. Dushyant Dave, learned Senior Advocate, in particular, para 24 of the judgment which reads asThe schemes of MODVAT and CENVAT credit are not therefore different and we are unable to agree with the conclusion of the Court in J.K. Udaipur Udyog, (2004) 7 SCCthat the CENVAT Credit Rules are the successor rules to the MODVAT Rules, as a general statement, the scheme contained in both the MODVAT as well as the CENVAT scheme may well be similar. However, that does not answer the precise question before us.Mr. Dave relied upon Solaris Chemtech Ltd., (supra) in which Rule 57A of the MODVAT Rules came up for construction. This judgment again went into what was the correct interpretation of the expression?in or in relation to the manufacturer of final products?and the definition of ?inputs? for the purpose of Rule 57A.This judgment again does not take the respondent?s case any further. As we have seen, the issue in this case was entirely different, electricity not being an excisable item which is captively consumed and used to manufacture cement/caustic soda was held nonetheless to be used in relation to the ?manufacturer? of the final product. The issue in the present case is whether, given the scheme of Rule 6 of the CENVAT Credit Rules, fuel used as inputs which are covered by Rule 6(1) can at all be said to be within the exception contained in Rule 6(2).This being the case, we are of the view that there is no conflict between the earlier judgment of Commissioner of Central Excise, Vadodara vs. Gujarat State Fertilizers and Chemicals Ltd., (2008) 15 SCC 46 and (2009) 9 SCC 101 [CCE vs. Gujarat Narmada Fertilizers Co. Ltd., (supra). Also, we are of the view that even after independently applying our minds to Rule 6 as it stood, the interpretation of this Court contained in (2009) 9 SCC 101 [CCE v. Gujarat Narmada Fertilizers Co. Ltd., (supra) is correct.
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Robin Ramjibhai Patel Vs. Anandibai Rama @ Rajaram Pawar & Others | resisted the claim of a subsequent purchaser seeking impleadment under Order I Rule 10 of the Code of Civil Procedure, 1908 (in short the CPC). Inspite of such opposition, the prayer for impleadment was allowed and the High Court did not interfere. Then the plaintiff moved this Court and the appeal by leave was allowed by setting aside the orders and dismissing the application for impleadment. In such factual scenario, the court clearly accepted the privilege of the plaintiff as to what shall be the scope of the suit and who should be allowed to intervene as defendant. With respect to claim of the subsequent agreement of sale to respondent no. 10, the Court observed in paragraph 6 of Ramesh Chandra Pattnaiks case (supra)as under:"Respondent 10 is alleged to have entered into an agreement with Respondent 1 on 15.11.1984 for sale of the property, which is the subject matter of the suit filed by the petitioner. In respect of such an agreement, Respondent 10, could have filed a suit for specific performance but as stated by the learned counsel appearing for the parties, no such suit has been filed. In our opinion Respondent 10 was not at all a necessary party for determination of the genuineness or otherwise of the agreement of sale which is said to have been entered into between the petitioner and respondent 1."6. In our considered view the respondent no. 10 in that case could not have a better claim than his proposed vendors who were already defendants and hence when opposed by the Plaintiff, the prayer for impleadment at the instance of such subsequent purchaser was rightly rejected by this court by observing that such a subsequent agreement holder could have filed a suit for a specific performance if he had any such rights.7. Coming to the judgment in Kasturis case (supra), it is notable that the suit for specific performance of contract for sale was filed by the appellant against respondent nos. 2 & 3. In the said suit respondent Nos. 1 & 4 to 11, who were not parties to the contract and had set up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial court allowed the application on the ground that such respondents had direct interest in the subject matter of the suit and hence their presence would be necessary to decide the controversies raised in the suit. The High Court confirmed the said order and then the plaintiff came to this Court as appellant and their prayer was allowed by this Court. This Court took a clear view in paragraph 21 in the following terms:"It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by Respondents 1 and 4 to 11 does not want to join Respondents 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced to join Respondents 1 and 4 to 11 as party-defendants in such suit. In the case of Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay on the question of jurisdiction this Court has clearly laid down that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff-appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order I Rule 10 CPC has already been exercised by the two courts below in favour of Respondents 1 and 4 to 11."8. As it appears from the aforesaid paragraph this Court accepted the status of dominus litus of the plaintiff and proceeded to hold that if the plaintiff did not want to join the rival claimants as defendant in the pending suit, the risk was totally of the plaintiff and he cannot be forced to join them as party defendant.9. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that "in equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."10. In our considered opinion, the judgment of the three Judge Bench in the Kasturis case (supra) recognises this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors. | 1[ds]9. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that "in equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."10. In our considered opinion, the judgment of the three Judge Bench in the Kasturis case (supra) recognises this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors. | 1 | 1,579 | 272 | ### 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:
resisted the claim of a subsequent purchaser seeking impleadment under Order I Rule 10 of the Code of Civil Procedure, 1908 (in short the CPC). Inspite of such opposition, the prayer for impleadment was allowed and the High Court did not interfere. Then the plaintiff moved this Court and the appeal by leave was allowed by setting aside the orders and dismissing the application for impleadment. In such factual scenario, the court clearly accepted the privilege of the plaintiff as to what shall be the scope of the suit and who should be allowed to intervene as defendant. With respect to claim of the subsequent agreement of sale to respondent no. 10, the Court observed in paragraph 6 of Ramesh Chandra Pattnaiks case (supra)as under:"Respondent 10 is alleged to have entered into an agreement with Respondent 1 on 15.11.1984 for sale of the property, which is the subject matter of the suit filed by the petitioner. In respect of such an agreement, Respondent 10, could have filed a suit for specific performance but as stated by the learned counsel appearing for the parties, no such suit has been filed. In our opinion Respondent 10 was not at all a necessary party for determination of the genuineness or otherwise of the agreement of sale which is said to have been entered into between the petitioner and respondent 1."6. In our considered view the respondent no. 10 in that case could not have a better claim than his proposed vendors who were already defendants and hence when opposed by the Plaintiff, the prayer for impleadment at the instance of such subsequent purchaser was rightly rejected by this court by observing that such a subsequent agreement holder could have filed a suit for a specific performance if he had any such rights.7. Coming to the judgment in Kasturis case (supra), it is notable that the suit for specific performance of contract for sale was filed by the appellant against respondent nos. 2 & 3. In the said suit respondent Nos. 1 & 4 to 11, who were not parties to the contract and had set up a claim of independent title and possession over the contracted property, filed an application to get themselves added in the suit as defendants. The trial court allowed the application on the ground that such respondents had direct interest in the subject matter of the suit and hence their presence would be necessary to decide the controversies raised in the suit. The High Court confirmed the said order and then the plaintiff came to this Court as appellant and their prayer was allowed by this Court. This Court took a clear view in paragraph 21 in the following terms:"It may be reiterated here that if the appellant who has filed the instant suit for specific performance of contract for sale even after receiving the notice of claim of title and possession by Respondents 1 and 4 to 11 does not want to join Respondents 1 and 4 to 11 in the pending suit, it is always done at the risk of the appellant because he cannot be forced to join Respondents 1 and 4 to 11 as party-defendants in such suit. In the case of Ramesh Hirachand Kundanmal v. Municipal Corpn. of Greater Bombay on the question of jurisdiction this Court has clearly laid down that it is always open to the court to interfere with an order allowing an application for addition of parties when it is found that the courts below had gone wrong in concluding that the persons sought to be added in the suit were necessary or proper parties to be added as defendants in the suit instituted by the plaintiff-appellant. In that case also this Court interfered with the orders of the courts below and rejected the application for addition of parties. Such being the position, it can no longer be said that this Court cannot set aside the impugned orders of the courts below on the ground that jurisdiction to invoke power under Order I Rule 10 CPC has already been exercised by the two courts below in favour of Respondents 1 and 4 to 11."8. As it appears from the aforesaid paragraph this Court accepted the status of dominus litus of the plaintiff and proceeded to hold that if the plaintiff did not want to join the rival claimants as defendant in the pending suit, the risk was totally of the plaintiff and he cannot be forced to join them as party defendant.9. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that "in equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."10. In our considered opinion, the judgment of the three Judge Bench in the Kasturis case (supra) recognises this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors.
### Response:
1
### Explanation:
9. In the aforesaid context, this Court also considered the provisions of Order I Rule 10 CPC and in paragraph 7 it expressed its view that the relevant provisions show that the necessary parties in a suit for specific performance of a contract for sale are not only parties to the contract or their legal representatives but also a person who had purchased the contracted property from the vendor. It was further elaborated that "in equity as well as in law, the contract constitutes rights and also regulates the liabilities of the parties. A purchaser is a necessary party as he would be affected if he had purchased with or without notice of the contract, but a person who claims adversely to the claim of a vendor is, however, not a necessary party. From the above, it is now clear that two tests are to be satisfied for determining the question who is a necessary party."10. In our considered opinion, the judgment of the three Judge Bench in the Kasturis case (supra) recognises this special status of a plaintiff which is well settled by several earlier judgments also and when the plaintiff wants to implead certain persons as defendants on the ground that they may be adversely affected by the outcome of the suit, then interest of justice also requires allowing such a prayer for impleadment so that the persons likely to be affected are aware of the proceedings and may take appropriate defence as suited to their vendors.
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THE STATE OF JHARKHAND Vs. M/S. AKASH COKE INDUSTRIES PVT. LTD | directing the Respondents to issue Refund Payment Order to the petitioner for an amount of Rs.12,32,496/- pertaining to the Financial Year 2005-06, being the admitted amount adjudicated by Respondents themselves in terms of Section 15(b) of the Central Sales Tax Act, 1956 towards the claim of the petitioner for reimbursement of the tax levied by the State Government under the Bihar Finance Act, 1981 on declared goods which were subsequently sold in course of inter-State trade and commerce. Further appropriate writ/order/directions, including Writ of Mandamus, be not issued directing the Respondents to pay statutory interest to the petitioner @ 9% per annum in terms of Section 43 of the Bihar Finance Act, 1981 from the expiry of the period of six months from the date of receipt of the application of refund filed by the petitioner till the date when Refund Payment Order is issued in favour of the petitioner.?12. The case that was set up before the High Court was inter alia as follows:?The respondent is a manufacturer of Hard Coke and for manufacture of hard coke, one of the necessary raw material is ‘Coal? which the respondent used to purchase by way of intra State transaction in the State of Jharkhand. Coal including Coke, in all its forms is also one of the declared goods under Section 15 of the C.S.T. Act. He referred to the original Assessment Order for the period 2005-06 as having been passed on 17.06.2008 both under the State Sale Tax Act and C.S.T. Act. It is further its case that certain transactions have been wrongly classified as falling under the State Act and the tax was levied under the State Act. It filed an appeal before the Joint Commissioner who set aside the Assessment and remanded the matter.?13. The respondent thereupon filed Revision Petition before Commercial Taxes Tribunal complaining that instead of Appellate Authority remanding the matter back to the Assessing Officer, it should have itself decided the issue whether sales were actually inter-state and not intra-state sales. The same was dismissed. The Assessing Officer passed a revised order and the sales were determined as interstate sale. The liability was fixed at Rs.26,97,266.34. A NIL demand was raised as the respondent had already paid the said amount. The respondent was entitled to be reimbursed the tax paid under the State Law on Coal and, therefore, the respondent had filed an application seeking refund. On the basis of the detailed adjudication by the Assistant Commissioner of Commercial Taxes, the amount refundable to the petitioner under Section 15 (b) of the Act was determined and an amount of Rs.12,32,496 was determined. Thereupon, the respondent filed an application under statutory Form-XX as prescribed under Rule 35 of the Rules, 1983 but no steps were taken by the respondent for issuance of the Refund Payment Order. Despite repeated requests to process its application for refund and to issue the Refund Payment Order, no steps were taken. The respondent was entitled to claim refund of the said amount with interest @ 9% from the date of expiry of 6 months of the date of receipt of the application. 14. On these allegations, the writ petition was filed. 15. In the counter affidavit to the writ petition filed by the appellants, the question as raised in the special leave petition, viz., whether Coal and Coke are different goods mentioned under Section 15(b) of the Act was not raised. The question set up in the counter affidavit was that refund can be claimed only in the event where a separate order has been duly passed under such provisions and it was contended that the application for refund in the instant case should have been in Statutory FORM XXIII and not in regular FORM XX and furthermore there should have been an issuance of excess payment notice in the statutory demand notice in Form XV. It was also contended that there was no inaction on part of the appellants. The appellants insisted on excess payment notice in the prescribed form. A supplementary counter affidavit was filed on behalf of the Assistant Commissioner of Commerce Taxes who is the 4 th appellant before us. Therein, it was stated that under Memo dated 10.12.2016 for both financial years 2004-05 and 2005-06, the Joint Commissioner Commercial Taxes informed the respondent regarding rejection of its application for refund. Therein, it was again reiterated that the respondent is required to submit the statutory FORM XXIII. Thereafter, respondent filed an application to amend its writ petition seeking to challenge the orders of rejection. Petitioner Nos.3 and 4 in the special leave petition, filed a counter affidavit. Therein, it is inter alia contended that in Form XXIII annexed by the respondents, the amount of tax paid in Column 6 was shown as Rs.9,28,379.52 whereas the claim of the respondent in the writ petition is Rs.12,32,496. The error is said to have been originated from the order dated 04.08.2011 passed under Section 15(b) of the Act. It was, therefore, prayed that revenue of the government exchequer was involved, the writ petition may be disposed of remanding the case back to the respondent to pass an order considering the actual facts of the case. It is also stated that the appellants are duty bound to refund any such amount which will be accrued as claimed under Section 15(b) of the Act. 16. It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal. 17. The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018. | 1[ds]This is despite the fact that both the goods which were purchased by way of intra-State transaction and the goods which are subject matter of the inter-State transaction are both declared goods under Section 14 of the Act.It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal.The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018. | 1 | 2,715 | 158 | ### 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:
directing the Respondents to issue Refund Payment Order to the petitioner for an amount of Rs.12,32,496/- pertaining to the Financial Year 2005-06, being the admitted amount adjudicated by Respondents themselves in terms of Section 15(b) of the Central Sales Tax Act, 1956 towards the claim of the petitioner for reimbursement of the tax levied by the State Government under the Bihar Finance Act, 1981 on declared goods which were subsequently sold in course of inter-State trade and commerce. Further appropriate writ/order/directions, including Writ of Mandamus, be not issued directing the Respondents to pay statutory interest to the petitioner @ 9% per annum in terms of Section 43 of the Bihar Finance Act, 1981 from the expiry of the period of six months from the date of receipt of the application of refund filed by the petitioner till the date when Refund Payment Order is issued in favour of the petitioner.?12. The case that was set up before the High Court was inter alia as follows:?The respondent is a manufacturer of Hard Coke and for manufacture of hard coke, one of the necessary raw material is ‘Coal? which the respondent used to purchase by way of intra State transaction in the State of Jharkhand. Coal including Coke, in all its forms is also one of the declared goods under Section 15 of the C.S.T. Act. He referred to the original Assessment Order for the period 2005-06 as having been passed on 17.06.2008 both under the State Sale Tax Act and C.S.T. Act. It is further its case that certain transactions have been wrongly classified as falling under the State Act and the tax was levied under the State Act. It filed an appeal before the Joint Commissioner who set aside the Assessment and remanded the matter.?13. The respondent thereupon filed Revision Petition before Commercial Taxes Tribunal complaining that instead of Appellate Authority remanding the matter back to the Assessing Officer, it should have itself decided the issue whether sales were actually inter-state and not intra-state sales. The same was dismissed. The Assessing Officer passed a revised order and the sales were determined as interstate sale. The liability was fixed at Rs.26,97,266.34. A NIL demand was raised as the respondent had already paid the said amount. The respondent was entitled to be reimbursed the tax paid under the State Law on Coal and, therefore, the respondent had filed an application seeking refund. On the basis of the detailed adjudication by the Assistant Commissioner of Commercial Taxes, the amount refundable to the petitioner under Section 15 (b) of the Act was determined and an amount of Rs.12,32,496 was determined. Thereupon, the respondent filed an application under statutory Form-XX as prescribed under Rule 35 of the Rules, 1983 but no steps were taken by the respondent for issuance of the Refund Payment Order. Despite repeated requests to process its application for refund and to issue the Refund Payment Order, no steps were taken. The respondent was entitled to claim refund of the said amount with interest @ 9% from the date of expiry of 6 months of the date of receipt of the application. 14. On these allegations, the writ petition was filed. 15. In the counter affidavit to the writ petition filed by the appellants, the question as raised in the special leave petition, viz., whether Coal and Coke are different goods mentioned under Section 15(b) of the Act was not raised. The question set up in the counter affidavit was that refund can be claimed only in the event where a separate order has been duly passed under such provisions and it was contended that the application for refund in the instant case should have been in Statutory FORM XXIII and not in regular FORM XX and furthermore there should have been an issuance of excess payment notice in the statutory demand notice in Form XV. It was also contended that there was no inaction on part of the appellants. The appellants insisted on excess payment notice in the prescribed form. A supplementary counter affidavit was filed on behalf of the Assistant Commissioner of Commerce Taxes who is the 4 th appellant before us. Therein, it was stated that under Memo dated 10.12.2016 for both financial years 2004-05 and 2005-06, the Joint Commissioner Commercial Taxes informed the respondent regarding rejection of its application for refund. Therein, it was again reiterated that the respondent is required to submit the statutory FORM XXIII. Thereafter, respondent filed an application to amend its writ petition seeking to challenge the orders of rejection. Petitioner Nos.3 and 4 in the special leave petition, filed a counter affidavit. Therein, it is inter alia contended that in Form XXIII annexed by the respondents, the amount of tax paid in Column 6 was shown as Rs.9,28,379.52 whereas the claim of the respondent in the writ petition is Rs.12,32,496. The error is said to have been originated from the order dated 04.08.2011 passed under Section 15(b) of the Act. It was, therefore, prayed that revenue of the government exchequer was involved, the writ petition may be disposed of remanding the case back to the respondent to pass an order considering the actual facts of the case. It is also stated that the appellants are duty bound to refund any such amount which will be accrued as claimed under Section 15(b) of the Act. 16. It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal. 17. The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018.
### Response:
1
### Explanation:
This is despite the fact that both the goods which were purchased by way of intra-State transaction and the goods which are subject matter of the inter-State transaction are both declared goods under Section 14 of the Act.It is on these pleadings that High Court proceeded to consider the petition and pass the order which we have already adverted to. There was absolutely no whisper in the counter affidavit or additional affidavit filed by the appellants seeking to project the dispute that Coal purchased by the respondents was not the same good as Coke manufactured out of Coal and, therefore, on sale of Coke in an inter-state Sale, the respondent is not entitled to get refund of the tax paid on the intra- state purchase of Coal.The same issue is involved in the other connected appeal, i.e., Civil Appeal arising out of SLP(C)No.2407/2018.
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Commissioner Of Income-Tax, Madhya Pradesh Vs. Sir Hukumchand Mannalal & Co | Shah, J. 1. A firm styled Sir Hukumchand Mannalal and Company was formed under a deed dated July 16, 1948 to carry on the business of "managing and selling agents" of Hukumchand Mills Ltd. Sir Hukumchand and his son Rajkumar Singh were two of the five partners of the fine. They represented the interest of the Hindu undivided family of Sir Hukumchand and his sons. On March 31, 1950 the property of the Hindu undivided family was partitioned and the interest of the family in the partnership was taken over by a private limited company styled Sir Sarupchand Hukumchand Ltd. 2. For the assessment years 1950-51, l951-52, 1952-53 and 1953-54 the Income-tax Officer granted registration of the firm under S. 26A of the Indian Income-tax Act, 1922. In 1954-55 the Income-tax Officer declined to grant registration. In appeal the Appellate Assistant Commissioner confirmed the order on the ground that two coparceners could not represent the interest of the Hindu undivided family in a partnership. The Tribunal reversed the order. They held that Sir Hukumchand and his son Rajkumar Singh were partners in the firm on behalf of the Hindu undivided family and there was nothing in law which prevented two or more coparceners of a Hindu undivided family representing the family from entering into a partnership with a stranger or strangers. 3. At the instance of the Commissioner of Income-tax the following question was referred by the Tribunal:"Whether in the facts and circumstances of the case the firm Hukumchand and Mannalal Company could be granted registration under S. 26A of the Act?" The High Court answered the question in the affirmative. The Commissioner of Income-tax has appealed to this Court with certificate granted by the High Court. 4. In Ram Laxman Sugar Mills v. Commr. of Income-tax, U.P., (l967) 66 ITR 613 (SC) this Court observed:"A Hindu undivided family is a "person" within the meaning of the Indian Income-tax Act: it is however not a juristic person for all purposes, and cannot enter into an agreement of partnership with either another undivided family or individual. It is open to the manager of a joint Hindu family as representing the family to agree to become a partner with another person. The partnership agreement in that case is between the manager and the other person, and by the partnership agreement no member of the family except the manager acquires a right or interest in the partnership. The junior members of the family may make a claim against the manager for treating the income or profits received from the partnership as a joint family asset, but they cannot claim to exercise the rights of partners nor be liable as partners." This position in law was not disputed on behalf of the Commissioner. But it was urged that since two members of a coparcenary represented in the firm the same beneficial interest of a Hindu undivided family, and since they were incompetent to enter into a contract inter se, the partnership agreement could not be registered. There is no substance in that contention. In Pichappa Chettiar v. Chokalingam Pillai, AIR 1934 PC l92 the Judicial Committee observed approving the observations made in Maynes Hindu Law (9th Edn.) at p. 398 to the following effect:"Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act, in such a case the family as a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger: the partnership will be governed by the Act." It is clearly enunciated that one or more members of a Hindu undivided family may enter into a contractual relationship in the nature of a partnership with a stranger and they qua the stranger become partners. The view expressed by the Judicial Committee was approved by this Court in Charandas Haridas v. Commr. of Income-tax, Bombay North, Kutch and Saurashtra, Ahmedabad, 39 ITR 202 = (AIR 1960 SC 910 ). 5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. It is now settled law that in considering an application for registration of a firm, the Income-tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests, Commr. of Income-tax v. A. Abdul Rahim and Co., 55 ITR 651 = (AIR 1965 SC 1703 ); Commr. of Income-tax, Madras v. Bagyalakashmi and Co., 55 ITR 660 = (AIR 1965 SC 1708 ). 6. In our judgment, the High Court was right in answering the question in the affirmative. | 0[ds]5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. It is now settled law that in considering an application for registration of a firm, the Income-tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests, Commr. of Income-tax v. A. Abdul Rahim and Co., 55 ITR 651 = (AIR 1965 SC 1703 ); Commr. of Income-tax, Madras v. Bagyalakashmi and Co., 55 ITR 660 = (AIR 1965 SC 1708 )6. In our judgment, the High Court was right in answering the question in the affirmative. | 0 | 1,007 | 236 | ### 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:
Shah, J. 1. A firm styled Sir Hukumchand Mannalal and Company was formed under a deed dated July 16, 1948 to carry on the business of "managing and selling agents" of Hukumchand Mills Ltd. Sir Hukumchand and his son Rajkumar Singh were two of the five partners of the fine. They represented the interest of the Hindu undivided family of Sir Hukumchand and his sons. On March 31, 1950 the property of the Hindu undivided family was partitioned and the interest of the family in the partnership was taken over by a private limited company styled Sir Sarupchand Hukumchand Ltd. 2. For the assessment years 1950-51, l951-52, 1952-53 and 1953-54 the Income-tax Officer granted registration of the firm under S. 26A of the Indian Income-tax Act, 1922. In 1954-55 the Income-tax Officer declined to grant registration. In appeal the Appellate Assistant Commissioner confirmed the order on the ground that two coparceners could not represent the interest of the Hindu undivided family in a partnership. The Tribunal reversed the order. They held that Sir Hukumchand and his son Rajkumar Singh were partners in the firm on behalf of the Hindu undivided family and there was nothing in law which prevented two or more coparceners of a Hindu undivided family representing the family from entering into a partnership with a stranger or strangers. 3. At the instance of the Commissioner of Income-tax the following question was referred by the Tribunal:"Whether in the facts and circumstances of the case the firm Hukumchand and Mannalal Company could be granted registration under S. 26A of the Act?" The High Court answered the question in the affirmative. The Commissioner of Income-tax has appealed to this Court with certificate granted by the High Court. 4. In Ram Laxman Sugar Mills v. Commr. of Income-tax, U.P., (l967) 66 ITR 613 (SC) this Court observed:"A Hindu undivided family is a "person" within the meaning of the Indian Income-tax Act: it is however not a juristic person for all purposes, and cannot enter into an agreement of partnership with either another undivided family or individual. It is open to the manager of a joint Hindu family as representing the family to agree to become a partner with another person. The partnership agreement in that case is between the manager and the other person, and by the partnership agreement no member of the family except the manager acquires a right or interest in the partnership. The junior members of the family may make a claim against the manager for treating the income or profits received from the partnership as a joint family asset, but they cannot claim to exercise the rights of partners nor be liable as partners." This position in law was not disputed on behalf of the Commissioner. But it was urged that since two members of a coparcenary represented in the firm the same beneficial interest of a Hindu undivided family, and since they were incompetent to enter into a contract inter se, the partnership agreement could not be registered. There is no substance in that contention. In Pichappa Chettiar v. Chokalingam Pillai, AIR 1934 PC l92 the Judicial Committee observed approving the observations made in Maynes Hindu Law (9th Edn.) at p. 398 to the following effect:"Where a managing member of a joint family enters into a partnership with a stranger the other members of the family do not ipso facto become partners in the business so as to clothe them with all the rights and obligations of a partner as defined by the Indian Contract Act, in such a case the family as a unit does not become a partner, but only such of its members as in fact enter into a contractual relation with the stranger: the partnership will be governed by the Act." It is clearly enunciated that one or more members of a Hindu undivided family may enter into a contractual relationship in the nature of a partnership with a stranger and they qua the stranger become partners. The view expressed by the Judicial Committee was approved by this Court in Charandas Haridas v. Commr. of Income-tax, Bombay North, Kutch and Saurashtra, Ahmedabad, 39 ITR 202 = (AIR 1960 SC 910 ). 5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. It is now settled law that in considering an application for registration of a firm, the Income-tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests, Commr. of Income-tax v. A. Abdul Rahim and Co., 55 ITR 651 = (AIR 1965 SC 1703 ); Commr. of Income-tax, Madras v. Bagyalakashmi and Co., 55 ITR 660 = (AIR 1965 SC 1708 ). 6. In our judgment, the High Court was right in answering the question in the affirmative.
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0
### Explanation:
5. The Indian Contract Act imposes no disability upon members of a Hindu undivided family in the matter of entering into a contract inter se or with a stranger. A member of a Hindu undivided family has the same liberty of contract as any other individual: it is restricted only in the manner and to the extent provided by the Indian Contract Act. Partnership is under Section 4 of the Partnership Act the relation between persons who have agreed to share the profits of a business carried on by all or any of them acting for all: if such a relation exists, it will not be invalid merely because two or more of the persons who have so agreed are members of a Hindu undivided family. It is now settled law that in considering an application for registration of a firm, the Income-tax Officer is not concerned to determine in whom the beneficial interest in the share in the partnership vests, Commr. of Income-tax v. A. Abdul Rahim and Co., 55 ITR 651 = (AIR 1965 SC 1703 ); Commr. of Income-tax, Madras v. Bagyalakashmi and Co., 55 ITR 660 = (AIR 1965 SC 1708 )6. In our judgment, the High Court was right in answering the question in the affirmative.
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Messrs. Burmah Construction Co Vs. The State Of Orissa And Ors | the assessments made in the light of the decision of this Court in respect of assessments made after the date of the petition. The appellants have appealed to this Court with special leave challenging the order in so far as their claim for refund is partially declared to be barred by the rule of limitation prescribed by S. 14 of the Orissa Sales Tax Act.4. The appellants challenge the correctness of the order declaring that the portion of the tax paid refund whereof is beyond the period of limitation under S. 14 of the Orissa Sales Tax Act, 1947 on the date of the filing of the application under Art, 226, as not refundable on two grounds:(1) that S. 14 of the Act is ultra vires the State Legislature:(2) that an application under S.14 which imposes a statutory obligation upon the Collector to refund the tax unlawfully recovered subject to certain conditions is not the only remedy open to the tax payer from which tax has been unlawfully recovered and the power of the High Court to direct refund of tax illegally recovered is not restricted by S. 14 of the Act. To the enforcement of other remedies the bar prescribed by the proviso to S. 14 does not apply.5. Section 14 of the Orissa Sales Tax Act, 1947, provides ;"14. The Collector shall, in the prescribed manner, refund to a dealer applying in this behalf any amount of tax paid by such dealer in excess of the amount due from him under this Act, either by cash payment or, at the option of the dealer, by deduction of such excess from the amount of lax due in respect of any other period :Provided that no claim to refund of any tax paid under this Act shall be allowed unless it is made within twenty-four months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later."By the first paragraph, S, 14 imposes an obligation upon the Collector to refund to a dealer any amount paid by such dealer in excess of the amount due from him under the Act. But the obligation is restricted; refund is not to be made unless an application is made within 24 months of the date on which the order of assessment was passed or within 12 months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later. The Orissa Sales Tax Act was enacted by the Orissa Legislature in exercise of the Legislative authority conferred upon it by item 48 of List II of the Seventh Schedule of the Government of India Act, 1935. In dealing with the vires of S. 14A of the Orissa Sales Tax Act, which was incorporated in the amended Act 28 of 1958 and which sought to confer a right to claim refund by an application to the Collector upon the person from whom tax was collected by the dealer, this Court observed in State of Orissa v. Orient Paper Mills Ltd., AIR 1961 SC 1438 that "The power to legislate with respect to a tax comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers. The diverse heads of legislation in the Schedule to the Constitution demarcate the periphery of legislative competence and include all matters which are ancillary or subsidiary to the primary head. The Legislature the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matters of granting refund of tax improperly or illegally collected". If the power to legislate in respect of tax comprehends the power to legislate in respect of refund of tax improperly or illegally collected, imposition of restrictions on the exercise of the right to claim refund will not be beyond the competence of the Legislature. Granting refund of tax improperly or illegally collected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods. The provisions of S. 14 of the Act are therefore not ultra vires the State Legislature.6. It is not necessary to consider in this case whether S. 14 prescribes the only remedy for refund of tax unlawfully collected by the State. The appellants have not filed any civil suit for a decree for refund of tax unlawfully collected from them. This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under S. 14 of the Act.The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable : but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.7. We are therefore of the opinion that the High Court was right in restricting the order of refund in the petition under Art. 226 of the Constitution. | 0[ds]This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under S. 14 of the Act.The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable : but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.7. We are therefore of the opinion that the High Court was right in restricting the order of refund in the petition under Art. 226 of the Constitution.If the power to legislate in respect of tax comprehends the power to legislate in respect of refund of tax improperly or illegally collected, imposition of restrictions on the exercise of the right to claim refund will not be beyond the competence of the Legislature. Granting refund of tax improperly or illegally collected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods. The provisions of S. 14 of the Act are therefore not ultra vires the State Legislature. | 0 | 1,710 | 330 | ### 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:
the assessments made in the light of the decision of this Court in respect of assessments made after the date of the petition. The appellants have appealed to this Court with special leave challenging the order in so far as their claim for refund is partially declared to be barred by the rule of limitation prescribed by S. 14 of the Orissa Sales Tax Act.4. The appellants challenge the correctness of the order declaring that the portion of the tax paid refund whereof is beyond the period of limitation under S. 14 of the Orissa Sales Tax Act, 1947 on the date of the filing of the application under Art, 226, as not refundable on two grounds:(1) that S. 14 of the Act is ultra vires the State Legislature:(2) that an application under S.14 which imposes a statutory obligation upon the Collector to refund the tax unlawfully recovered subject to certain conditions is not the only remedy open to the tax payer from which tax has been unlawfully recovered and the power of the High Court to direct refund of tax illegally recovered is not restricted by S. 14 of the Act. To the enforcement of other remedies the bar prescribed by the proviso to S. 14 does not apply.5. Section 14 of the Orissa Sales Tax Act, 1947, provides ;"14. The Collector shall, in the prescribed manner, refund to a dealer applying in this behalf any amount of tax paid by such dealer in excess of the amount due from him under this Act, either by cash payment or, at the option of the dealer, by deduction of such excess from the amount of lax due in respect of any other period :Provided that no claim to refund of any tax paid under this Act shall be allowed unless it is made within twenty-four months from the date on which the order of assessment was passed or within twelve months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later."By the first paragraph, S, 14 imposes an obligation upon the Collector to refund to a dealer any amount paid by such dealer in excess of the amount due from him under the Act. But the obligation is restricted; refund is not to be made unless an application is made within 24 months of the date on which the order of assessment was passed or within 12 months of the final order passed on appeal, revision, review or reference in respect of the order of assessment, whichever period is later. The Orissa Sales Tax Act was enacted by the Orissa Legislature in exercise of the Legislative authority conferred upon it by item 48 of List II of the Seventh Schedule of the Government of India Act, 1935. In dealing with the vires of S. 14A of the Orissa Sales Tax Act, which was incorporated in the amended Act 28 of 1958 and which sought to confer a right to claim refund by an application to the Collector upon the person from whom tax was collected by the dealer, this Court observed in State of Orissa v. Orient Paper Mills Ltd., AIR 1961 SC 1438 that "The power to legislate with respect to a tax comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers. The diverse heads of legislation in the Schedule to the Constitution demarcate the periphery of legislative competence and include all matters which are ancillary or subsidiary to the primary head. The Legislature the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matters of granting refund of tax improperly or illegally collected". If the power to legislate in respect of tax comprehends the power to legislate in respect of refund of tax improperly or illegally collected, imposition of restrictions on the exercise of the right to claim refund will not be beyond the competence of the Legislature. Granting refund of tax improperly or illegally collected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods. The provisions of S. 14 of the Act are therefore not ultra vires the State Legislature.6. It is not necessary to consider in this case whether S. 14 prescribes the only remedy for refund of tax unlawfully collected by the State. The appellants have not filed any civil suit for a decree for refund of tax unlawfully collected from them. This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under S. 14 of the Act.The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable : but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.7. We are therefore of the opinion that the High Court was right in restricting the order of refund in the petition under Art. 226 of the Constitution.
### Response:
0
### Explanation:
This appeal arises out of a proceeding filed in the High Court substantially to compel the Collector to carry out his statutory obligations under S. 14 of the Act.The High Court normally does not entertain a petition under Art. 226 of the Constitution to enforce a civil liability arising out of a breach of contract or a tort to pay an amount of money due to the claimant and leaves it to the aggrieved party to agitate the question in a civil suit filed for that purpose. But an order for payment of money may sometimes be made in a petition under Art. 226 of the Constitution against the State or against an officer of the State to enforce a statutory obligation. The petition in the present case is for enforcement of the liability of the Collector imposed by statute to refund a tax illegally collected and it was maintainable : but it can only be allowed subject to the restrictions which have been imposed by the Legislature. It is not open to the claimant to rely upon the statutory right and to ignore the restrictions subject to which the right is made enforceable.7. We are therefore of the opinion that the High Court was right in restricting the order of refund in the petition under Art. 226 of the Constitution.If the power to legislate in respect of tax comprehends the power to legislate in respect of refund of tax improperly or illegally collected, imposition of restrictions on the exercise of the right to claim refund will not be beyond the competence of the Legislature. Granting refund of tax improperly or illegally collected and the restriction on the exercise of that right are both ancillary or subsidiary matters relating to the primary head of tax on sale of goods. The provisions of S. 14 of the Act are therefore not ultra vires the State Legislature.
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AHMED ABDULLA AHMED AL GHURAIR (THROUGH THEIR POWER OF ATTORNEY HOLDER MR. BARTHOLOMEW KAMYA) Vs. STAR HEALTH AND ALLIED INSURANCE COMPANY LIMITED | Counsel for the plaintiffs submitted that the Mysore Court was incompetent to deliver an effective judgment in respect of the shares. But by personal compliance with an order for retransfer judgment in favour of the plaintiffs could be rendered effective. Per Hidayatullah, J (Minority) : It only remains to consider the argument in relation to the shares of the Indian Sugars and Refineries Ltd. It was contended that the shares must be deemed to be situated where they could be effectively dealt with and that was Madras, where the Head Office of the Company was situated. Learned counsel relied upon some English cases in support of his contention. It is not necessary to refer to those cases. The situs of shares between the Company and the shareholders is undoubtedly in the country where the business is situated. But in a dispute between rival claimants both within the jurisdiction of a court over shares the court has jurisdiction over the parties and the share scrips which are before the court. The Mysore court was in this position. Between the rival claimants the Mysore High Court could order the share scrips to be handed over to the successful party and if necessary could order transfer of the shares between them and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore courts on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion, this controversy does not arise in this case, which must be decided on the plain words of Section 13 of the Code of Civil Procedure.? 6.12 Keeping in view of the abovesaid principles of law,let us consider the issues raised before us. Admittedly, the defendant no. 2 is a foreign entity governed by the laws of Dubai. The Plaintiffs are its shareholders. Therefore, any dispute between them will have to be resolved under the laws of Dubai. Hence, the contention of the learned Senior Counsel appearing for the plaintiffs that they are stepping into the shoes of the defendant no. 2 seeking a relief against the defendant no. 1 cannot be countenanced. This is also for the reason that there must be declaration in clear terms qua the status of a beneficial interest holder before seeking a relief against the defendant no. 1. More so, when defendant no. 2 itself denies it. 6.13 In the case on hand, the fundamental and core facts are not in dispute. They are with respect to the consolidation and deconsolidation of defendant No. 2 by the defendant No. 11. Similarly a decision of the general body of a ETA Group, the Board of Directors and the participation of the plaintiffs in that are also not in dispute. These undisputed happenings lead to the draft financial statement of the defendant No. 11. This draft financial statement confirms two things. One is with respect to the deconsolidation and the other is removal of status over the shares held by the individuals. The decision was to implement it with retrospective effect from 10.01.2014. It is an admitted case that the decision of the ETA Group and the draft financial statement of defendant No. 11 would make the trustees of the holders f the respective shares involving beneficial interest as absolute owners. The plaintiffs may have grievance over this, but their remedy will lie elsewhere. That is the reason why one of the plaintiffs after issuing notice on behalf of the defendant No. 11 to defendant No. 1, has chosen to file the suit along with the other in the status of shareholders. May be it is also for the reason that the defendant No. 11 cannot wriggle out of the decision of ETA Group followed by its draft financial statement. If we see the cause of action as recorded above, it is abundantly clear that what has triggered the present suit is the aforesaid facts. 6.14 The decision of the ETA Group, which consists of numerous entities, applies to every shareholder of the Group. Accordingly, the status of a registered owner would get transferred into one of absolute ownership. Therefore, even if we go by the averments in the plaint while eschewing the defence of the defendant No. 2, no relief can be claimed before this Court. It is an indirect way of challenging the decision of the ETA Group, in which, the plaintiffs were also parties. Any adjudication on this though indirectly, will have a serious spiralling effect, as settled things would get unsettled for the reason that it might have an adverse impact on other shareholders of other entities coming under the umbrella of the ETA Group. The logic and rationale behind the decision of a foreign entity cannot be adjudicated here. Be that as it may, certainly the remedy lies elsewhere. We should also keep in mind the defendants 2 and 11 are admittedly situated outside the jurisdiction of the Court though the plaintiffs contend that defendants 3 to 7, despite being non resident Indians are permanent residents of Chennai. This is nothing but an attempt to review the decision made already by the ETA Group as acknowledged by the defendant No. 11 in the draft financial statement. After all, the relief that is sought against the defendant No. 1 is a mere consequential one. When once the plaintiffs succeed against defendant Nos. 2 to 7 then defendant No. 1 is bound to give effect to it. For doing so, the remedy for the plaintiffs against defendants Nos. 2 to 7 lies elsewhere.? 57. | 0[ds]From the material facts in this behalf, as mentioned in the plaint itself, specifically in paragraphs 54 and 55 of the plaint, while making the averments qua the cause of action and territorial jurisdiction, it becomes apparent that the plaintiffs got aggrieved by the draft Consolidated Financial Statement of Defendant No. 11 (which is again a Dubai company and a parent company) and this statement records deconsolidation of its account with those of Defendant No. 2. Thereal dispute, thus, is whether Defendant Nos. 3 to 7 in whose name shares to the extent of 6.16% of Indian Company stand, are the real owners or it is Defendant no. 2 Company which has the beneficial interest in the said shares.Though, the plaintiffs claim beneficial interest of Defendant No. 2, Defendant Nos. 3 to 7 deny the same. Interestingly, even Defendant No. 2 Company, whose beneficial interest in these shares is claimed by the plaintiffs, refutes such a claim of the plaintiffs. Thus, in reality, it is the dispute between the plaintiffs and Defendant nos. 3 to 7 who are all residents of Dubai. Even Defendant No. 2 whose beneficial interest is claimed by the plaintiffs is a Company incorporated in Dubai, UAE. Merely, because the dispute is about those shares which are issued by Indian Company would not lead to the conclusion that cause of action has arisen in India. It is obvious that insofar as Defendant No. 1/Indian Company is concerned it has nothing to do with the dispute. The relief of declaration which is sought is that Defendant Nos. 3 to 7 are not the real owners of such shares and its actual/beneficial owner is Defendant No. 2. Such a dispute would not bring jurisdiction of Chennai courts simply because Defendant No. 1/Indian Company has its registered office in Chennai. Even if it is presumed that the plaintiffs ultimately succeed in their action, when brought in a competent court in Dubai, and a declaration of the aforesaid nature is given by the said court, Defendant No. 1 can always act thereupon.Mr. Gopal Subramanium, had referred to the provisions of Section 89(1) and (8) of the Companies Act, 2013. As per(1) of Section 89, a person whose name is entered in the register of Members of the Company as the holders of shares in that Company but does not hold beneficial interest in such shares, he shall make declaration within the prescribed time to the Company specifying the name and address of the person who hold the beneficial interest.(8) provides that if such a declaration is not made right in this behalf cannot be enforced by other person claiming through the beneficial owner. Prima facie, it appears that court in India on the application of the aforesaid provision would not be in a position to give any relief to the plaintiffs in the instant suit. The High Court has discussed in detail the nature of derivative action as well as the meaning that is to be ascribed to the term ‘beneficial interest?. It is rightly pointed out that the suit for derivative action is an exception to the general principle of locus. It can be claimed only in a particular situation. Such a situation has to be seen contextually from the point of view of the entity, on whose behalf the suit is filed. Incidentally, the inter se relationship between the plaintiffs and the beneficial owner, which may be a company is also of relevance. It may involve a case of deceit, fraud, inability or incapacity. However, the fundamental factor to be considered is the relationship between the plaintiff and the party, which the plaintiff seeks to represent.As it can be discerned from the definition of ‘Beneficial interest? provided in Section 3 of the Indian Trust Act, 1882, there are two parties involved in an issue governing beneficial interest. One is a beneficiary named as ‘beneficial owner? and the other is the owner named as ‘registered owner? being the trustee of the property or the asset in question. Thus, one can deduce the underlining principle that the ownership is nonetheless legal over the trust property, which vests on him but he also acts as a trustee of the beneficiary. A beneficial owner may include a person who stands behind the registered owner when he acts like a trustee, legal representative or an agent.The High Court is also right in its observation that for applying the principles governing a derivative action one fundamental test has to be passed, viz., such an action will necessary have the sanction of law and this shall have no obligation to a foreign entity having beneficial interest which can be enforced in India especially when there are provisions dealing with such a situation.(1990) 1 FC 199While considering the territorial jurisdiction over a suit initiated to protect the beneficial interest, the issue qua the existence of such an interest can only be decided on the condition that the same is amenable to such a jurisdiction. Defendant no. 2 is admittedly not amenable to the jurisdiction of Madras High Court.The High Court in the impugned judgment has also discussed in detail the meaning and scope of ‘cause of action? by referring to various judgments including A.B.C. Laminart (Pvt.) Ltd. and Another vs. A.P. Agencies, Salem. It has also considered the scope of Clause 12 of the Letters Patent which is peculiar to Madras High Court, where a leave is required to be obtained when part of cause of action arises within the territorial jurisdiction of the said court. In such a situation, as rightly contended by Mr. Mukul Rohatgi, the principles of forum convenience would become applicable as laid down in the case of Kusum Ingots and Alloys Ltd. vs. Union of India and Another. We find that court in Dubai would be more convenient forum to decide the dispute between the parties who are residents of Dubai and which revolves around Defendant no. 2, again a Company registered and situate in Dubai.The High Court also appears to be right in holding that the relief sought for against Indian Company, at best, is a consequential one and cannot give a cause of action. Even Defendant no. 2 cannot seek such(2004) 6 SCC 254 a relief without resolving its dispute as against Defendant nos. 3 to 7. Such a dispute can only be dealt with by competent forum in Dubai as per the law prevailing in Dubai, UAE. | 0 | 12,697 | 1,207 | ### 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:
Counsel for the plaintiffs submitted that the Mysore Court was incompetent to deliver an effective judgment in respect of the shares. But by personal compliance with an order for retransfer judgment in favour of the plaintiffs could be rendered effective. Per Hidayatullah, J (Minority) : It only remains to consider the argument in relation to the shares of the Indian Sugars and Refineries Ltd. It was contended that the shares must be deemed to be situated where they could be effectively dealt with and that was Madras, where the Head Office of the Company was situated. Learned counsel relied upon some English cases in support of his contention. It is not necessary to refer to those cases. The situs of shares between the Company and the shareholders is undoubtedly in the country where the business is situated. But in a dispute between rival claimants both within the jurisdiction of a court over shares the court has jurisdiction over the parties and the share scrips which are before the court. The Mysore court was in this position. Between the rival claimants the Mysore High Court could order the share scrips to be handed over to the successful party and if necessary could order transfer of the shares between them and enforce that order by the coercive process of the law. It would be a different matter if the Company refused to register the transfer and a different question might then have arisen; but we are told that the Company has obeyed the decision and accepted the executors as the shareholders. The judgment of the Mysore courts on the ownership of the shares is ancillary to the main decision. It is therefore not necessary for me to consider the argument of Mr Desai that jurisdiction attaches on the principle of effectiveness propounded by Dicey, but which has been criticised by the present editors of his book and by Cheshire. In my opinion, this controversy does not arise in this case, which must be decided on the plain words of Section 13 of the Code of Civil Procedure.? 6.12 Keeping in view of the abovesaid principles of law,let us consider the issues raised before us. Admittedly, the defendant no. 2 is a foreign entity governed by the laws of Dubai. The Plaintiffs are its shareholders. Therefore, any dispute between them will have to be resolved under the laws of Dubai. Hence, the contention of the learned Senior Counsel appearing for the plaintiffs that they are stepping into the shoes of the defendant no. 2 seeking a relief against the defendant no. 1 cannot be countenanced. This is also for the reason that there must be declaration in clear terms qua the status of a beneficial interest holder before seeking a relief against the defendant no. 1. More so, when defendant no. 2 itself denies it. 6.13 In the case on hand, the fundamental and core facts are not in dispute. They are with respect to the consolidation and deconsolidation of defendant No. 2 by the defendant No. 11. Similarly a decision of the general body of a ETA Group, the Board of Directors and the participation of the plaintiffs in that are also not in dispute. These undisputed happenings lead to the draft financial statement of the defendant No. 11. This draft financial statement confirms two things. One is with respect to the deconsolidation and the other is removal of status over the shares held by the individuals. The decision was to implement it with retrospective effect from 10.01.2014. It is an admitted case that the decision of the ETA Group and the draft financial statement of defendant No. 11 would make the trustees of the holders f the respective shares involving beneficial interest as absolute owners. The plaintiffs may have grievance over this, but their remedy will lie elsewhere. That is the reason why one of the plaintiffs after issuing notice on behalf of the defendant No. 11 to defendant No. 1, has chosen to file the suit along with the other in the status of shareholders. May be it is also for the reason that the defendant No. 11 cannot wriggle out of the decision of ETA Group followed by its draft financial statement. If we see the cause of action as recorded above, it is abundantly clear that what has triggered the present suit is the aforesaid facts. 6.14 The decision of the ETA Group, which consists of numerous entities, applies to every shareholder of the Group. Accordingly, the status of a registered owner would get transferred into one of absolute ownership. Therefore, even if we go by the averments in the plaint while eschewing the defence of the defendant No. 2, no relief can be claimed before this Court. It is an indirect way of challenging the decision of the ETA Group, in which, the plaintiffs were also parties. Any adjudication on this though indirectly, will have a serious spiralling effect, as settled things would get unsettled for the reason that it might have an adverse impact on other shareholders of other entities coming under the umbrella of the ETA Group. The logic and rationale behind the decision of a foreign entity cannot be adjudicated here. Be that as it may, certainly the remedy lies elsewhere. We should also keep in mind the defendants 2 and 11 are admittedly situated outside the jurisdiction of the Court though the plaintiffs contend that defendants 3 to 7, despite being non resident Indians are permanent residents of Chennai. This is nothing but an attempt to review the decision made already by the ETA Group as acknowledged by the defendant No. 11 in the draft financial statement. After all, the relief that is sought against the defendant No. 1 is a mere consequential one. When once the plaintiffs succeed against defendant Nos. 2 to 7 then defendant No. 1 is bound to give effect to it. For doing so, the remedy for the plaintiffs against defendants Nos. 2 to 7 lies elsewhere.? 57.
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### Explanation:
account with those of Defendant No. 2. Thereal dispute, thus, is whether Defendant Nos. 3 to 7 in whose name shares to the extent of 6.16% of Indian Company stand, are the real owners or it is Defendant no. 2 Company which has the beneficial interest in the said shares.Though, the plaintiffs claim beneficial interest of Defendant No. 2, Defendant Nos. 3 to 7 deny the same. Interestingly, even Defendant No. 2 Company, whose beneficial interest in these shares is claimed by the plaintiffs, refutes such a claim of the plaintiffs. Thus, in reality, it is the dispute between the plaintiffs and Defendant nos. 3 to 7 who are all residents of Dubai. Even Defendant No. 2 whose beneficial interest is claimed by the plaintiffs is a Company incorporated in Dubai, UAE. Merely, because the dispute is about those shares which are issued by Indian Company would not lead to the conclusion that cause of action has arisen in India. It is obvious that insofar as Defendant No. 1/Indian Company is concerned it has nothing to do with the dispute. The relief of declaration which is sought is that Defendant Nos. 3 to 7 are not the real owners of such shares and its actual/beneficial owner is Defendant No. 2. Such a dispute would not bring jurisdiction of Chennai courts simply because Defendant No. 1/Indian Company has its registered office in Chennai. Even if it is presumed that the plaintiffs ultimately succeed in their action, when brought in a competent court in Dubai, and a declaration of the aforesaid nature is given by the said court, Defendant No. 1 can always act thereupon.Mr. Gopal Subramanium, had referred to the provisions of Section 89(1) and (8) of the Companies Act, 2013. As per(1) of Section 89, a person whose name is entered in the register of Members of the Company as the holders of shares in that Company but does not hold beneficial interest in such shares, he shall make declaration within the prescribed time to the Company specifying the name and address of the person who hold the beneficial interest.(8) provides that if such a declaration is not made right in this behalf cannot be enforced by other person claiming through the beneficial owner. Prima facie, it appears that court in India on the application of the aforesaid provision would not be in a position to give any relief to the plaintiffs in the instant suit. The High Court has discussed in detail the nature of derivative action as well as the meaning that is to be ascribed to the term ‘beneficial interest?. It is rightly pointed out that the suit for derivative action is an exception to the general principle of locus. It can be claimed only in a particular situation. Such a situation has to be seen contextually from the point of view of the entity, on whose behalf the suit is filed. Incidentally, the inter se relationship between the plaintiffs and the beneficial owner, which may be a company is also of relevance. It may involve a case of deceit, fraud, inability or incapacity. However, the fundamental factor to be considered is the relationship between the plaintiff and the party, which the plaintiff seeks to represent.As it can be discerned from the definition of ‘Beneficial interest? provided in Section 3 of the Indian Trust Act, 1882, there are two parties involved in an issue governing beneficial interest. One is a beneficiary named as ‘beneficial owner? and the other is the owner named as ‘registered owner? being the trustee of the property or the asset in question. Thus, one can deduce the underlining principle that the ownership is nonetheless legal over the trust property, which vests on him but he also acts as a trustee of the beneficiary. A beneficial owner may include a person who stands behind the registered owner when he acts like a trustee, legal representative or an agent.The High Court is also right in its observation that for applying the principles governing a derivative action one fundamental test has to be passed, viz., such an action will necessary have the sanction of law and this shall have no obligation to a foreign entity having beneficial interest which can be enforced in India especially when there are provisions dealing with such a situation.(1990) 1 FC 199While considering the territorial jurisdiction over a suit initiated to protect the beneficial interest, the issue qua the existence of such an interest can only be decided on the condition that the same is amenable to such a jurisdiction. Defendant no. 2 is admittedly not amenable to the jurisdiction of Madras High Court.The High Court in the impugned judgment has also discussed in detail the meaning and scope of ‘cause of action? by referring to various judgments including A.B.C. Laminart (Pvt.) Ltd. and Another vs. A.P. Agencies, Salem. It has also considered the scope of Clause 12 of the Letters Patent which is peculiar to Madras High Court, where a leave is required to be obtained when part of cause of action arises within the territorial jurisdiction of the said court. In such a situation, as rightly contended by Mr. Mukul Rohatgi, the principles of forum convenience would become applicable as laid down in the case of Kusum Ingots and Alloys Ltd. vs. Union of India and Another. We find that court in Dubai would be more convenient forum to decide the dispute between the parties who are residents of Dubai and which revolves around Defendant no. 2, again a Company registered and situate in Dubai.The High Court also appears to be right in holding that the relief sought for against Indian Company, at best, is a consequential one and cannot give a cause of action. Even Defendant no. 2 cannot seek such(2004) 6 SCC 254 a relief without resolving its dispute as against Defendant nos. 3 to 7. Such a dispute can only be dealt with by competent forum in Dubai as per the law prevailing in Dubai, UAE.
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Challamma Vs. Tilaga | had been arrived at by the courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but also he sought for allotment of a quarter as a married person. It is of some significance to notice that one Subba Rao, a personnel officer of the KPC while examining himself as P.W.5 categorically stated that in terms of the rules for allotment of quarter by the company commonly known as `Township Committee Rules quarters were allotted to married persons only and clubbed accommodation were provided to the bachelors.10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.In Tulsa v. Durghatiya [(2008) 4 SCC 520] , this court held: "11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy. Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187)"... where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage."13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that: (AIR p. 138)"The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years."14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act." It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. {See Ranganath Parmeshwar Panditrao Modi v. Eknath Gajanan Kulkarni [(1996) 7 SCC 681] , and Sobha Hymavathi Devi v. Setti Gangadhara Swamy [(2005) 2 SCC 244] . Such a presumption can be validly raised having regard to Section 50 of the Indian Evidence Act. [See Tulsa (supra)] A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place. 11. There is another aspect of the matter which cannot be lost sight of. Section 39 of the Insurance Act, 1938 enables the holder of a policy, while effecting the same, to nominate a person to whom the money secured by the policy shall be paid in the event of his death. The effect of such nomination was considered by this Court in Vishin N. Khanchandani & Anr. Vs. Vidya Lachmandas Khanchandani & Anr. [(2000) 6 SCC 724] wherein the law has been laid down in the following terms: "....The nomination only indicated the hand which was authorised to receive the amount on the payment of which the insurer got a valid discharge of its liability under the policy. The policy-holder continued to have an interest in the policy during his lifetime and the nominee acquired no sort of interest in the policy during the lifetime of the policy-holder. On the death of the policy-holder, the amount payable under the policy became part of his estate which was governed by the law of succession applicable to him. Such succession may be testamentary or intestate. Section 39 did not operate as a third kind of succession which could be styled as a statutory testament. A nominee could not be treated as being equivalent to an heir or legatee. The amount of interest under the policy could, therefore, be claimed by the heirs of the assured in accordance with the law of succession governing them." In Smt. Sarbati Devi & Anr. vs. Smt. Usha Devi [(1984) 1 SCC 424] , this Court held: "4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Dev on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip Sing and Uma Sehgal v. Dwarka Dass Sehgal in all other decisions cited before us the view taken is that the nominee under Section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him...." 12. In view of the fact that the appellant was one of the heirs and legal representatives of the deceased Subramanya, there cannot be any doubt whatsoever that she had been rightly held to be entitled to 1/4th share in the estate of the deceased Subramanya. | 0[ds]In arriving at a finding of fact indisputably the learned trial judge was not only entitled to analyze the evidences brought on record by the parties hereto so as to come to a conclusion as to whether all the ingredients of a valid marriage as contained in Section 5 of the Hindu Marriage Act, 1955 stand established or not; a presumption of a valid marriage having regard to the fact that they had been residing together for a long time and has been accepted in the society as husband and wife, could also beis true, as has been contended by Mr. Chaturvedi, that the appellant had brought on record certain documents to show that the deceased in the year 1986 while applying for his employment in Mysore Power Corporation showed his status as `single, but a specific finding of fact had been arrived at by the courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but also he sought for allotment of a quarter as a married person. It is of some significance to notice that one Subba Rao, a personnel officer of the KPC while examining himself as P.W.5 categorically stated that in terms of the rules for allotment of quarter by the company commonly known as `Township Committee Rules quarters were allotted to married persons only and clubbed accommodation were provided to the bachelors.10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.In view of the fact that the appellant was one of the heirs and legal representatives of the deceased Subramanya, there cannot be any doubt whatsoever that she had been rightly held to be entitled to 1/4th share in the estate of the deceased Subramanya. | 0 | 2,194 | 388 | ### Instruction:
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had been arrived at by the courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but also he sought for allotment of a quarter as a married person. It is of some significance to notice that one Subba Rao, a personnel officer of the KPC while examining himself as P.W.5 categorically stated that in terms of the rules for allotment of quarter by the company commonly known as `Township Committee Rules quarters were allotted to married persons only and clubbed accommodation were provided to the bachelors.10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.In Tulsa v. Durghatiya [(2008) 4 SCC 520] , this court held: "11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. Andrahennedige Dinohamy v. Wijetunge Liyanapatabendige Balahamy. Their Lordships of the Privy Council laid down the general proposition that: (AIR p. 187)"... where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage."13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan Their Lordships of the Privy Council once again laid down that: (AIR p. 138)"The law presumes in favour of marriage and against concubinage, when a man and a woman have cohabited continuously for a number of years."14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act." It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. {See Ranganath Parmeshwar Panditrao Modi v. Eknath Gajanan Kulkarni [(1996) 7 SCC 681] , and Sobha Hymavathi Devi v. Setti Gangadhara Swamy [(2005) 2 SCC 244] . Such a presumption can be validly raised having regard to Section 50 of the Indian Evidence Act. [See Tulsa (supra)] A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place. 11. There is another aspect of the matter which cannot be lost sight of. Section 39 of the Insurance Act, 1938 enables the holder of a policy, while effecting the same, to nominate a person to whom the money secured by the policy shall be paid in the event of his death. The effect of such nomination was considered by this Court in Vishin N. Khanchandani & Anr. Vs. Vidya Lachmandas Khanchandani & Anr. [(2000) 6 SCC 724] wherein the law has been laid down in the following terms: "....The nomination only indicated the hand which was authorised to receive the amount on the payment of which the insurer got a valid discharge of its liability under the policy. The policy-holder continued to have an interest in the policy during his lifetime and the nominee acquired no sort of interest in the policy during the lifetime of the policy-holder. On the death of the policy-holder, the amount payable under the policy became part of his estate which was governed by the law of succession applicable to him. Such succession may be testamentary or intestate. Section 39 did not operate as a third kind of succession which could be styled as a statutory testament. A nominee could not be treated as being equivalent to an heir or legatee. The amount of interest under the policy could, therefore, be claimed by the heirs of the assured in accordance with the law of succession governing them." In Smt. Sarbati Devi & Anr. vs. Smt. Usha Devi [(1984) 1 SCC 424] , this Court held: "4. At the outset it should be mentioned that except the decision of the Allahabad High Court in Kesari Devi v. Dharma Dev on which reliance was placed by the High Court in dismissing the appeal before it and the two decisions of the Delhi High Court in S. Fauza Singh v. Kuldip Sing and Uma Sehgal v. Dwarka Dass Sehgal in all other decisions cited before us the view taken is that the nominee under Section 39 of the Act is nothing more than an agent to receive the money due under a life insurance policy in the circumstances similar to those in the present case and that the money remains the property of the assured during his lifetime and on his death forms part of his estate subject to the law of succession applicable to him...." 12. In view of the fact that the appellant was one of the heirs and legal representatives of the deceased Subramanya, there cannot be any doubt whatsoever that she had been rightly held to be entitled to 1/4th share in the estate of the deceased Subramanya.
### Response:
0
### Explanation:
In arriving at a finding of fact indisputably the learned trial judge was not only entitled to analyze the evidences brought on record by the parties hereto so as to come to a conclusion as to whether all the ingredients of a valid marriage as contained in Section 5 of the Hindu Marriage Act, 1955 stand established or not; a presumption of a valid marriage having regard to the fact that they had been residing together for a long time and has been accepted in the society as husband and wife, could also beis true, as has been contended by Mr. Chaturvedi, that the appellant had brought on record certain documents to show that the deceased in the year 1986 while applying for his employment in Mysore Power Corporation showed his status as `single, but a specific finding of fact had been arrived at by the courts below that all the subsequent documents clearly showed that not only the deceased married the first respondent but also he sought for allotment of a quarter as a married person. It is of some significance to notice that one Subba Rao, a personnel officer of the KPC while examining himself as P.W.5 categorically stated that in terms of the rules for allotment of quarter by the company commonly known as `Township Committee Rules quarters were allotted to married persons only and clubbed accommodation were provided to the bachelors.10. It is beyond any cavil of doubt that in determining the question of valid marriage, the conduct of the deceased in a case of this nature would be of some relevance. If on the aforementioned premise, the learned trial judge has arrived at a finding that the deceased Subramanya had married the first respondent, no exception thereto can be taken. A long cohabitation and acceptance of the society of a man and woman as husband and wife goes a long way in establishing a valid marriage.In view of the fact that the appellant was one of the heirs and legal representatives of the deceased Subramanya, there cannot be any doubt whatsoever that she had been rightly held to be entitled to 1/4th share in the estate of the deceased Subramanya.
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Smt. P.K. Narayani & Others Vs. State of Kerala & Others | 1. The petitioners have been serving as employees of the State of Kerala or of Public Section Corporations in that State for the past few years. By these writ petitions they contend that they are workmen within the meaning go the Industrial Disputes Act and ask for a declaration that the proposed termination of their employment by the Government of Kerala or by the Corporation is unconstitutional.2. We have heard learned counsel for the petitioners and for the respondents at some length. We are of the opinion that the best solution, in the circumstances of the case, is to ask and allow the petitioners to appear for the next Public Service Commission examination.3. Accordingly, we direct that the petitioners and all others who are similarly situated will be permitted to appear for the next examination which the State Public Service Commission may hold. The petitioner will be entitled to appear for that examination along with the other candidates who may be due to appear for the examination.4. Many of the petitioners will be bared by age for appearing at the next examination of the Public Service Commission. At the time of the last examination, the Government of Kerala had relaxed the age restriction by directing that if the petitioners were not age-barred on the date on which they entered the service of the State or any of its Public Sector Corporations, the rule regarding age will be relaxed in their favour. We direct that the petitioners and others similarly situated will be allowed to appear for the next examination by similar relaxation of the age restriction, provided that they have been in continuous employment. Such relaxation will be limited to and available for the next examination only.5. We hope that the State Public Service Commission will be able to hold the next examination as early as possible preferably within a period of three months from today. These writ petitions involve in a human problem which has more that one facet. On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services. On the other are the exigencies of series which require that persons who have been selected by the Public Service Commissioner on merits must take charge of their posts. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously.6. The petitioners and all others who are similarly situated may be allowed to continue in service, provided that there are vacancies in which they can be allowed to continue to work. | 0[ds]5. We hope that the State Public Service Commission will be able to hold the next examination as early as possible preferably within a period of three months from today. These writ petitions involve in a human problem which has more that one facet. On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services. On the other are the exigencies of series which require that persons who have been selected by the Public Service Commissioner on merits must take charge of their posts. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously.6. The petitioners and all others who are similarly situated may be allowed to continue in service, provided that there are vacancies in which they can be allowed to continue to work. | 0 | 459 | 161 | ### Instruction:
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1. The petitioners have been serving as employees of the State of Kerala or of Public Section Corporations in that State for the past few years. By these writ petitions they contend that they are workmen within the meaning go the Industrial Disputes Act and ask for a declaration that the proposed termination of their employment by the Government of Kerala or by the Corporation is unconstitutional.2. We have heard learned counsel for the petitioners and for the respondents at some length. We are of the opinion that the best solution, in the circumstances of the case, is to ask and allow the petitioners to appear for the next Public Service Commission examination.3. Accordingly, we direct that the petitioners and all others who are similarly situated will be permitted to appear for the next examination which the State Public Service Commission may hold. The petitioner will be entitled to appear for that examination along with the other candidates who may be due to appear for the examination.4. Many of the petitioners will be bared by age for appearing at the next examination of the Public Service Commission. At the time of the last examination, the Government of Kerala had relaxed the age restriction by directing that if the petitioners were not age-barred on the date on which they entered the service of the State or any of its Public Sector Corporations, the rule regarding age will be relaxed in their favour. We direct that the petitioners and others similarly situated will be allowed to appear for the next examination by similar relaxation of the age restriction, provided that they have been in continuous employment. Such relaxation will be limited to and available for the next examination only.5. We hope that the State Public Service Commission will be able to hold the next examination as early as possible preferably within a period of three months from today. These writ petitions involve in a human problem which has more that one facet. On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services. On the other are the exigencies of series which require that persons who have been selected by the Public Service Commissioner on merits must take charge of their posts. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously.6. The petitioners and all others who are similarly situated may be allowed to continue in service, provided that there are vacancies in which they can be allowed to continue to work.
### Response:
0
### Explanation:
5. We hope that the State Public Service Commission will be able to hold the next examination as early as possible preferably within a period of three months from today. These writ petitions involve in a human problem which has more that one facet. On one hand are the difficulties in which the petitioners find themselves as a result of the impending termination of their services. On the other are the exigencies of series which require that persons who have been selected by the Public Service Commissioner on merits must take charge of their posts. In order not to aggravate this problem, it is necessary that the examination should be held by the Public Service Commission expeditiously.6. The petitioners and all others who are similarly situated may be allowed to continue in service, provided that there are vacancies in which they can be allowed to continue to work.
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Manoj Sharma Vs. State & Others | Altamas Kabir, J. 1. Leave granted. 2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves, is the question which arises for decision in this appeal. 3. The identical question fell for the consideration of this Court in the case of B.S. Joshi vs. State of Haryana, [2003 (4) SCC 675 ] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498-A and 406 IPC by the wife could be quashed under Section 482 Cr.P.C. on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State. 4. In B.S. Joshis case, this Court drew a distinction between compounding an offence as permitted under Section 320 Cr.P.C. and quashing of the complaint or criminal proceedings under Section 482 Cr.P.C. as also Article 226 of the Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, [1998 (5) SCC 749 ], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were not circumscribed by Section 320 of the Code of Criminal Procedure.5. While the appellant herein strongly relied on the decision in B.S. Joshis case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshis case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, [2002 (9) SCC 533 ], K.G. Prem Shankar vs. Inspector of Police and Anr. [JT 2002 (7) SC 30 ] and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. [JT 2004 (suppl.1 ) SC 1], Mr. Singh submitted that in B.S. Joshis case there was a departure from the view taken in the first of the two aforesaid cases. 6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singhs contention that the decision in B.S. Joshis case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshis case was the power and authority of the High Court to exercise jurisdiction under Section 482 Cr.P.C. or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 Cr.P.C. or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 Cr.P.C.. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and correctly. 7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same. 8. In our view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. 9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility. 10. | 1[ds]In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing theour view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of eachthe facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility | 1 | 1,084 | 262 | ### Instruction:
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Altamas Kabir, J. 1. Leave granted. 2. The question whether a First Information Report under Sections 420/468/471/34/120-B IPC can be quashed either under Section 482 of the Code of Criminal Procedure or under Article 226 of the Constitution, when the accused and the complainant have compromised and settled the matter between themselves, is the question which arises for decision in this appeal. 3. The identical question fell for the consideration of this Court in the case of B.S. Joshi vs. State of Haryana, [2003 (4) SCC 675 ] wherein also the question arose as to whether criminal proceedings or a First Information Report or complaint filed under Section 498-A and 406 IPC by the wife could be quashed under Section 482 Cr.P.C. on account of the fact that the offences complained of were not compoundable under Section 320 of the Code. The objection taken in the said case has also been raised by Mr. B.B. Singh, learned advocate for the respondent State. 4. In B.S. Joshis case, this Court drew a distinction between compounding an offence as permitted under Section 320 Cr.P.C. and quashing of the complaint or criminal proceedings under Section 482 Cr.P.C. as also Article 226 of the Constitution. Pointing out that the appellant in the said case had not prayed for compounding the offence as the same was not compoundable, this Court observed with reference to the earlier decision in Pepsi Food Limited vs. Special Judicial Magistrate, [1998 (5) SCC 749 ], that where the Court will exercise jurisdiction under Section 482 of the Code could not be inflexible or rigid formulae to be followed by the Courts could not be laid down. Exercise of such power would depend upon the facts and circumstances of each case but with the sole object of preventing abuse of the process of any Court, or otherwise to secure the ends of justice. It was also observed that it is well settled that these powers have no bar, but the same was required to be exercised with utmost care and caution. Accordingly, the learned Judges held that the power of the High Court under Section 482 of the Code to quash Criminal proceedings or FIR or complaint were not circumscribed by Section 320 of the Code of Criminal Procedure.5. While the appellant herein strongly relied on the decision in B.S. Joshis case. Mr. B.B. Singh, learned counsel appearing for the respondent-State urged that having regard to the specific provision in the Code regarding compounding of offences, and indicating what offences may be compromised either with or without the leave of the Court, possibly the decision rendered in B.S. Joshis case required a second look. Relying on the decision of this Court in Inspector of Police, CBI vs. Rajagopal, [2002 (9) SCC 533 ], K.G. Prem Shankar vs. Inspector of Police and Anr. [JT 2002 (7) SC 30 ] and also Textile Labour Association and Anr. Vs. Official Liquidator and Anr. [JT 2004 (suppl.1 ) SC 1], Mr. Singh submitted that in B.S. Joshis case there was a departure from the view taken in the first of the two aforesaid cases. 6. We have carefully considered the submissions made on behalf of the respective parties and the facts involved in this case, and we are not inclined to accept Mr. Singhs contention that the decision in B.S. Joshis case requires reconsideration, at least not in the facts of this case. What was decided in B.S. Joshis case was the power and authority of the High Court to exercise jurisdiction under Section 482 Cr.P.C. or under Article 226 of the Constitution to quash offences which are not compoundable. The law stated in the said case simply indicates the powers of the High Court to quash any criminal proceeding or First Information Report or complaint whether it be compoundable or not. The ultimate exercise of discretion under Section 482 Cr.P.C. or under Article 226 of the Constitution is with the Court which has to exercise such jurisdiction in the facts of each case. It has been explained that the said power is in no way limited by the provisions of Section 320 Cr.P.C.. We are unable to disagree with such statement of law. In any event, in this case, we are only required to consider whether the High Court had exercised its jurisdiction under Section 482 Cr.P.C. legally and correctly. 7. In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing the same. 8. In our view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of each case. 9. In the facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility. 10.
### Response:
1
### Explanation:
In view of the nature of the offences set out in the complaint, the High Court did not consider it an appropriate case for exercising its jurisdiction under Article 226 of the Constitution for quashing theour view, the High Courts refusal to exercise its jurisdiction under Article 226 of the Constitution for quashing the criminal proceedings cannot be supported. The First Information Report, which had been lodged by the complainant indicates a dispute between the complainant and the accused which is of a private nature. It is no doubt true that the First Information Report was the basis of the investigation by the Police authorities, but the dispute between the parties remained one of a personal nature. Once the complainant decided not to pursue the matter further, the High Court could have taken a more pragmatic view of the matter. We do not suggest that while exercising its powers under Article 226 of the Constitution the High Court could not have refused to quash the First Information Report, but what we do say is that the matter could have been considered by the High Court with greater pragmatism in the facts of the case. As we have indicated hereinbefore, the exercise of power under Section 482 Cr.P.C. or Article 226 of the Constitution is discretionary to be exercised in the facts of eachthe facts of this case we are of the view that continuing with the criminal proceedings would be an exercise in futility
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BALAJI ASSOCIATES THROUGH ITS PARTNERS Vs. THE STATE OF MAHARASHTRA | the Act, given to the municipal authorities, was increased from 6 months to 12 months by an Amending Act in 2009 (Mah. Act No. 16 of 2009); further, this time period was increased from 12 months to 24 months in 2015 (Mah. Act No. 42 of 2015 w.e.f 29.08.2015). From the aforesaid amendments, it can be noted that the legislative intent was to provide sufficient time for the Municipalities to acquire the land as per the Developmental Plan needed for effective town planning. 17. In any case, the respondents herein have admitted that the fresh proposal was forwarded from the office of respondent no. 3 on 16.12.2016, and the same is currently being processed through the Office of Land Acquisition Officer, Amaravati. From the aforesaid narration, there is no gain saying that the appellant has been denied its right to enjoy benefits of its possession by this protracted litigation. Mere forwarding of the proposal, would not be sufficient under Section 127 (1) of the Act, as the concerned provision distinguishes between step of acquisition of land from step for acquisition of land. 18. In this context, we may refer to the case of Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher and Ors., 2013 (5) SCC 627 , wherein a three Judge Bench of this Court has observed that- 42. We are further of the view that the majority in Girnar Traders (2) 1 had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government. 43. The expression no steps as aforesaid used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphades interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution. 1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555 (emphasis supplied) In line with the observations of this Court, we hold that the authorities have not taken sufficient steps towards acquisition in this case. As the 24 months time period stipulated under the law has elapsed, therefore the necessary procedures under Section 127 (1) of the Act, stand satisfied for de-reserving the disputed land. 19. The respondents have finally argued that the fulfilment of requirements under Section 127 (1) of the Act does not automatically de-reserve the land, rather its a discretion, under sub-section 2 of Section 127 of the Act, bestowed on the Government to choose the land to be de-reserved and publish the same in the Official Gazette. Such mandatory reading of the sub-section 2 of Section 127 of the Act, would give unfettered power in the hands of the State to pick and choose. This Court needs to effectively balance the power of eminent domain and the constitutional right of property, which mandates a rational reading of the law, wherein the declaration in the Official Gazette is only consequential and the State needs to follow, if the conditions under sub-section 127 (1) stands satisfied. The usage of On lapsing of reservation, allocation or designation of any land under sub-section (1) in the sub-section 2 of Section 127, clearly points towards the aforesaid interpretation. Moreover, the usage of shall, also indicates the imperative nature of the sub- section, which makes the Government duty bound to publish the same. [refer Labour Commr. M. P. v. Burhanpur Tapti Mill Ltd. & Ors., AIR 1964 SC 1687 ] In this case, we are of the opinion that the requirement under Section 127 (1) are fully satisfied. 20. Our attention has been drawn to certain adverse remarks passed by the High Court against the advocate, who appeared before it for the appellant herein, as contained in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the impugned judgment. In our considered opinion, such adverse remarks were uncalled for, un-necessary and therefore, the same stand expunged from the record. 21. In the light of the aforesaid observations, the inevitable conclusion is that the reservation of the appellants land in question has lapsed and the land has become available to the appellant to be developed as otherwise permissible. | 1[ds]The statutory provision is clear and categorical. Section 127 (1), mandates that for an owner whose land is reserved, allotted or designated, in terms of final regional plan or developmental plan, needs to serve a notice to inform the municipality and seek its response concerning its interest in acquiring the land, if he wants his property to be de-reserved. As provided under the Section, the time limit to serve such notice accrues from the end date of stipulated period of ten years. Once such notice is served, the municipality has 24 months to acquire or take steps for acquisition of land. If municipality does not take the required measures in accordance with the aforesaid provision, then the land would be de-reserved and the owner can develop the same in accordance with law. Under sub-section 2 of Section 127 of the Act, the Government is required to publish the de-reserved plots in the Official Gazette15. In our considered opinion, the writ courts, usually, should not indulge themselves in such factual findings. However, this case has been dragged too long and any further delay would unduly affect the right to enjoy property and benefits thereof. In any case, this case turns on the aspect of admission on the part of the respondents, that the second notice was received on 02.09.2015. There is no gain saying that the respondents have not denied that their own General Body Meeting Resolution has accepted that the date of receival was 02.09.2015. In this context we need to accept the same. We may note that the High Court has ignored the aforesaid aspect, to rely exclusively on the acknowledgment. In the afore-stated circumstances, reliance on the acknowledgment would not be safe. Having come to this understanding, we can conclude that the second notice can be said to have reached the Municipality on 02.09.2015, after the expiry of the stipulated periodWe may note that the aforesaid time period of 24 months under Section 127 of the Act, given to the municipal authorities, was increased from 6 months to 12 months by an Amending Act in 2009 (Mah. Act No. 16 of 2009); further, this time period was increased from 12 months to 24 months in 2015 (Mah. Act No. 42 of 2015 w.e.f 29.08.2015). From the aforesaid amendments, it can be noted that the legislative intent was to provide sufficient time for the Municipalities to acquire the land as per the Developmental Plan needed for effective town planning17. In any case, the respondents herein have admitted that the fresh proposal was forwarded from the office of respondent no. 3 on 16.12.2016, and the same is currently being processed through the Office of Land Acquisition Officer, Amaravati. From the aforesaid narration, there is no gain saying that the appellant has been denied its right to enjoy benefits of its possession by this protracted litigation. Mere forwarding of the proposal, would not be sufficient under Section 127 (1) of the Act, as the concerned provision distinguishes between step of acquisition of land from step for acquisition of land18. In this context, we may refer to the case of Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher and Ors., 2013 (5) SCC 627 , wherein a three Judge Bench of this Court has observed that-42. We are further of the view that the majority in Girnar Traders (2) 1 had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government43. The expression no steps as aforesaid used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphades interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555 In line with the observations of this Court, we hold that the authorities have not taken sufficient steps towards acquisition in this case. As the 24 months time period stipulated under the law has elapsed, therefore the necessary procedures under Section 127 (1) of the Act, stand satisfied for de-reserving the disputed land19. The respondents have finally argued that the fulfilment of requirements under Section 127 (1) of the Act does not automatically de-reserve the land, rather its a discretion, under sub-section 2 of Section 127 of the Act, bestowed on the Government to choose the land to be de-reserved and publish the same in the Official Gazette. Such mandatory reading of the sub-section 2 of Section 127 of the Act, would give unfettered power in the hands of the State to pick and choose. This Court needs to effectively balance the power of eminent domain and the constitutional right of property, which mandates a rational reading of the law, wherein the declaration in the Official Gazette is only consequential and the State needs to follow, if the conditions under sub-section 127 (1) stands satisfied. The usage of On lapsing of reservation, allocation or designation of any land under sub-section (1) in the sub-section 2 of Section 127, clearly points towards the aforesaid interpretation. Moreover, the usage of shall, also indicates the imperative nature of the sub- section, which makes the Government duty bound to publish the same. [refer Labour Commr. M. P. v. Burhanpur Tapti Mill Ltd. & Ors., AIR 1964 SC 1687 ] In this case, we are of the opinion that the requirement under Section 127 (1) are fully satisfied20. Our attention has been drawn to certain adverse remarks passed by the High Court against the advocate, who appeared before it for the appellant herein, as contained in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the impugned judgment. In our considered opinion, such adverse remarks were uncalled for, un-necessary and therefore, the same stand expunged from the record21. In the light of the aforesaid observations, the inevitable conclusion is that the reservation of the appellants land in question has lapsed and the land has become available to the appellant to be developed as otherwise permissible. | 1 | 3,354 | 1,462 | ### 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:
the Act, given to the municipal authorities, was increased from 6 months to 12 months by an Amending Act in 2009 (Mah. Act No. 16 of 2009); further, this time period was increased from 12 months to 24 months in 2015 (Mah. Act No. 42 of 2015 w.e.f 29.08.2015). From the aforesaid amendments, it can be noted that the legislative intent was to provide sufficient time for the Municipalities to acquire the land as per the Developmental Plan needed for effective town planning. 17. In any case, the respondents herein have admitted that the fresh proposal was forwarded from the office of respondent no. 3 on 16.12.2016, and the same is currently being processed through the Office of Land Acquisition Officer, Amaravati. From the aforesaid narration, there is no gain saying that the appellant has been denied its right to enjoy benefits of its possession by this protracted litigation. Mere forwarding of the proposal, would not be sufficient under Section 127 (1) of the Act, as the concerned provision distinguishes between step of acquisition of land from step for acquisition of land. 18. In this context, we may refer to the case of Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher and Ors., 2013 (5) SCC 627 , wherein a three Judge Bench of this Court has observed that- 42. We are further of the view that the majority in Girnar Traders (2) 1 had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government. 43. The expression no steps as aforesaid used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphades interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution. 1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555 (emphasis supplied) In line with the observations of this Court, we hold that the authorities have not taken sufficient steps towards acquisition in this case. As the 24 months time period stipulated under the law has elapsed, therefore the necessary procedures under Section 127 (1) of the Act, stand satisfied for de-reserving the disputed land. 19. The respondents have finally argued that the fulfilment of requirements under Section 127 (1) of the Act does not automatically de-reserve the land, rather its a discretion, under sub-section 2 of Section 127 of the Act, bestowed on the Government to choose the land to be de-reserved and publish the same in the Official Gazette. Such mandatory reading of the sub-section 2 of Section 127 of the Act, would give unfettered power in the hands of the State to pick and choose. This Court needs to effectively balance the power of eminent domain and the constitutional right of property, which mandates a rational reading of the law, wherein the declaration in the Official Gazette is only consequential and the State needs to follow, if the conditions under sub-section 127 (1) stands satisfied. The usage of On lapsing of reservation, allocation or designation of any land under sub-section (1) in the sub-section 2 of Section 127, clearly points towards the aforesaid interpretation. Moreover, the usage of shall, also indicates the imperative nature of the sub- section, which makes the Government duty bound to publish the same. [refer Labour Commr. M. P. v. Burhanpur Tapti Mill Ltd. & Ors., AIR 1964 SC 1687 ] In this case, we are of the opinion that the requirement under Section 127 (1) are fully satisfied. 20. Our attention has been drawn to certain adverse remarks passed by the High Court against the advocate, who appeared before it for the appellant herein, as contained in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the impugned judgment. In our considered opinion, such adverse remarks were uncalled for, un-necessary and therefore, the same stand expunged from the record. 21. In the light of the aforesaid observations, the inevitable conclusion is that the reservation of the appellants land in question has lapsed and the land has become available to the appellant to be developed as otherwise permissible.
### Response:
1
### Explanation:
of 24 months under Section 127 of the Act, given to the municipal authorities, was increased from 6 months to 12 months by an Amending Act in 2009 (Mah. Act No. 16 of 2009); further, this time period was increased from 12 months to 24 months in 2015 (Mah. Act No. 42 of 2015 w.e.f 29.08.2015). From the aforesaid amendments, it can be noted that the legislative intent was to provide sufficient time for the Municipalities to acquire the land as per the Developmental Plan needed for effective town planning17. In any case, the respondents herein have admitted that the fresh proposal was forwarded from the office of respondent no. 3 on 16.12.2016, and the same is currently being processed through the Office of Land Acquisition Officer, Amaravati. From the aforesaid narration, there is no gain saying that the appellant has been denied its right to enjoy benefits of its possession by this protracted litigation. Mere forwarding of the proposal, would not be sufficient under Section 127 (1) of the Act, as the concerned provision distinguishes between step of acquisition of land from step for acquisition of land18. In this context, we may refer to the case of Shrirampur Municipal Council, Shrirampur vs. Satyabhamabai Bhimaji Dawkher and Ors., 2013 (5) SCC 627 , wherein a three Judge Bench of this Court has observed that-42. We are further of the view that the majority in Girnar Traders (2) 1 had rightly observed that steps towards the acquisition would really commence when the State Government takes active steps for the acquisition of the particular piece of land which leads to publication of the declaration under Section 6 of the 1894 Act. Any other interpretation of the scheme of Sections 126 and 127 of the 1966 Act will make the provisions wholly unworkable and leave the landowner at the mercy of the Planning Authority and the State Government43. The expression no steps as aforesaid used in Section 127 of the 1966 Act has to be read in the context of the provisions of the 1894 Act and mere passing of a resolution by the Planning Authority or sending of a letter to the Collector or even the State Government cannot be treated as commencement of the proceedings for the acquisition of land under the 1966 Act or the 1894 Act. By enacting Sections 125 to 127 of the 1966 Act, the State Legislature has made a definite departure from the scheme of acquisition enshrined in the 1894 Act. But a holistic reading of these provisions makes it clear that while engrafting the substance of some of the provisions of the 1894 Act in the 1966 Act and leaving out other provisions, the State Legislature has ensured that the landowners/other interested persons, whose land is utilized for execution of the Development plan/Town Planning Scheme, etc., are not left high and dry. This is the reason why time limit of ten years has been prescribed in Section 31(5) and also under Sections 126 and 127 of the 1966 Act for the acquisition of land, with a stipulation that if the land is not acquired within six months of the service of notice under Section 127 or steps are not commenced for acquisition, reservation of the land will be deemed to have lapsed. Shri Naphades interpretation of the scheme of Sections 126 and 127, if accepted, will lead to absurd results and the landowners will be deprived of their right to use the property for an indefinite period without being paid compensation. That would tantamount to depriving the citizens of their property without the sanction of law and would result in violation of Article 300A of the Constitution1. Girnar Traders (2) v. State of Maharashtra, (2007) 7 SCC 555 In line with the observations of this Court, we hold that the authorities have not taken sufficient steps towards acquisition in this case. As the 24 months time period stipulated under the law has elapsed, therefore the necessary procedures under Section 127 (1) of the Act, stand satisfied for de-reserving the disputed land19. The respondents have finally argued that the fulfilment of requirements under Section 127 (1) of the Act does not automatically de-reserve the land, rather its a discretion, under sub-section 2 of Section 127 of the Act, bestowed on the Government to choose the land to be de-reserved and publish the same in the Official Gazette. Such mandatory reading of the sub-section 2 of Section 127 of the Act, would give unfettered power in the hands of the State to pick and choose. This Court needs to effectively balance the power of eminent domain and the constitutional right of property, which mandates a rational reading of the law, wherein the declaration in the Official Gazette is only consequential and the State needs to follow, if the conditions under sub-section 127 (1) stands satisfied. The usage of On lapsing of reservation, allocation or designation of any land under sub-section (1) in the sub-section 2 of Section 127, clearly points towards the aforesaid interpretation. Moreover, the usage of shall, also indicates the imperative nature of the sub- section, which makes the Government duty bound to publish the same. [refer Labour Commr. M. P. v. Burhanpur Tapti Mill Ltd. & Ors., AIR 1964 SC 1687 ] In this case, we are of the opinion that the requirement under Section 127 (1) are fully satisfied20. Our attention has been drawn to certain adverse remarks passed by the High Court against the advocate, who appeared before it for the appellant herein, as contained in line numbers 1 to 7 and 76 to 79 of paragraph 5 of the impugned judgment. In our considered opinion, such adverse remarks were uncalled for, un-necessary and therefore, the same stand expunged from the record21. In the light of the aforesaid observations, the inevitable conclusion is that the reservation of the appellants land in question has lapsed and the land has become available to the appellant to be developed as otherwise permissible.
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Kochu Govindan Kaimal & Others Vs. Thayankoot Thekkot Lakshmi Amma & Others | testators should take all the properties. But if Kesavan Kaimal could himself agree to bequeath his properties to those legatees, we see nothing unnatural in his mother also agreeing to bequeath her properties to them - they being the heirs of the testators under the Marumakkattayam law. Learned counsel for the respondents sought to rely on the subsequent conduct of the parties as showing that they understood the will as conferring a joint estate on the testators. It was said that it was in that belief that Kesavan Kaimal was dealing with the properties of the other testators as his own, after their death. It was also said that the conduct of the other members of the tarwad, including the plaintiffs showed that they shared that belief. And this was sought to be made out by reference to the proceedings in E. A. No. 320 of 1938 in S. C. No. 480 of 1933. The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in S. C. No. 480 of 1933, and in execution of that decree, he brought some of the tarwad properties to sale, purchased them himself and got into possession. The members of the tarwad then filed an application, E. A. No. 320 of 1938, under O. 21, R. 100 for redelivery of the properties to them on the ground that the decree and the sale proceedings were not binding on them, and that was dismissed. In the order dismissing the application, the District Munsif observed that under the will dated February 10, 1906 Kesavan Kaimal had the power to transfer the properties. This order was relied on in these proceedings as operating as res judicata in favour of the respondents; but that contention was negatived by the Courts below, and has not been repeated before us. But these proceedings are now sought to be relied on as showing that the members of the tarwad did not dispute the title of Kesavan Kaimal to the properties which were dealt with by the will. 10. As against this, the appellant referred us to a partition deed dated May 16, 1915, and a mortgage deed dated March 4, 1926, to both of which Kesavan Kaimal was a party, in which he and other members of the family had understood the will in question as meaning that the testators held the properties covered by the will in separate and exclusive ownership.Whatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning, in our view, the terms of the will are clear, and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible. We are accordingly of opinion that the will dated February 10, 1906, is what it purports to be - a will, and nothing else. It does not confer any rights inter se on the testators; it only vests the title to the properties disposed of by it in the legatees on the death of the testators. In this view, the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and is, in effect, three wills combined in one. 11. A joint will, though unusual, is not unknown to law. In Halsbury Laws of England, Hailshams Edition, Vol. 34, page 17, para. 12, the law is thus stated :"A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property. It is not, however, recognised the English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills". There is a similar statement of the law in Jarman on Wills, 8th Edition, page 41. The following observations of Farewell, J. in Duddell in re; Roundway v. Roundway, 1932-1 Ch 585 at p. 592 are apposite :"....... in my judgment it is plain on the authorities that there may be a joint will in the sense that if two people make a bargain to make a joint will, effect may be given to that document. On the death of the first of those two persons the will is admitted to probate as a disposition of the property that he possesses. On the death of the second person, assuming that no fresh will has been made, the will is admitted to probate as the disposition of the second persons property ......" 12. It was also argued for the respondents that the will might be construed as a mutual will, but that, in our opinion, is an impossible contention to urge on the recitals of the document. A will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.It cannot be argued that there is, in the present case, a bequest by the testators to themselves. There is nothing in the will to support such a contention, which would be inconsistent with the position taken by the respondents that there was a settlement of the properties inter vivos converting separate properties into joint properties. In this view, on the death of Kunhan Kaimal his properties vested in the legatees under the will dated February 10, 1906 and therefore neither Kesavan Kaimal nor his transferees under the deeds could lay any claim to them. | 1[ds]We are unable to read any such implication in those words. It is difficult to imagine how properties which were to be acquired in future could form the subject-matter of a disposition in praesenti. On the other hand, the true purpose of his clause would seem to be to emphasise that the execution of the will does not affect the rights of the testators over their properties, and that is an indication that it is to operate as a will. The matter appears to us to be concluded beyond all doubt by the terms of Cl. 3 which provided that the testators could alienate the properties jointly or severally. If the properties were intended to be impressed with the character of joint property, an alienation by any one of them singly would be incompetent. In coming to the conclusion to which he did, the learned Judge in the Court below was very largely influenced by the fact that the will dealt with, not only the separate properties of the testators but also of their joint properties, and that there was one disposition as regards all of them. But this reasoning is based on a misconception of the recitals in the will.The will does not refer to any joint properties of the testators but to properties jointly acquired by them - which is very different. They would hold these properties as tenants-in-common, and their share therein would devolve as their separate propertiesWhatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning, in our view, the terms of the will are clear, and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible. We are accordingly of opinion that the will dated February 10, 1906, is what it purports to be - a will, and nothing else. It does not confer any rights inter se on the testators; it only vests the title to the properties disposed of by it in the legatees on the death of the testators. In this view, the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and is, in effect, three wills combined in one12. It was also argued for the respondents that the will might be construed as a mutual will, but that, in our opinion, is an impossible contention to urge on the recitals of the document. A will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.It cannot be argued that there is, in the present case, a bequest by the testators to themselves. There is nothing in the will to support such a contention, which would be inconsistent with the position taken by the respondents that there was a settlement of the properties inter vivos converting separate properties into joint properties. In this view, on the death of Kunhan Kaimal his properties vested in the legatees under the will dated February 10, 1906 and therefore neither Kesavan Kaimal nor his transferees under the deeds could lay any claim to them. | 1 | 3,227 | 661 | ### Instruction:
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testators should take all the properties. But if Kesavan Kaimal could himself agree to bequeath his properties to those legatees, we see nothing unnatural in his mother also agreeing to bequeath her properties to them - they being the heirs of the testators under the Marumakkattayam law. Learned counsel for the respondents sought to rely on the subsequent conduct of the parties as showing that they understood the will as conferring a joint estate on the testators. It was said that it was in that belief that Kesavan Kaimal was dealing with the properties of the other testators as his own, after their death. It was also said that the conduct of the other members of the tarwad, including the plaintiffs showed that they shared that belief. And this was sought to be made out by reference to the proceedings in E. A. No. 320 of 1938 in S. C. No. 480 of 1933. The facts were that one Kunhunni Kaimal obtained a decree against Kesavan Kaimal in S. C. No. 480 of 1933, and in execution of that decree, he brought some of the tarwad properties to sale, purchased them himself and got into possession. The members of the tarwad then filed an application, E. A. No. 320 of 1938, under O. 21, R. 100 for redelivery of the properties to them on the ground that the decree and the sale proceedings were not binding on them, and that was dismissed. In the order dismissing the application, the District Munsif observed that under the will dated February 10, 1906 Kesavan Kaimal had the power to transfer the properties. This order was relied on in these proceedings as operating as res judicata in favour of the respondents; but that contention was negatived by the Courts below, and has not been repeated before us. But these proceedings are now sought to be relied on as showing that the members of the tarwad did not dispute the title of Kesavan Kaimal to the properties which were dealt with by the will. 10. As against this, the appellant referred us to a partition deed dated May 16, 1915, and a mortgage deed dated March 4, 1926, to both of which Kesavan Kaimal was a party, in which he and other members of the family had understood the will in question as meaning that the testators held the properties covered by the will in separate and exclusive ownership.Whatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning, in our view, the terms of the will are clear, and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible. We are accordingly of opinion that the will dated February 10, 1906, is what it purports to be - a will, and nothing else. It does not confer any rights inter se on the testators; it only vests the title to the properties disposed of by it in the legatees on the death of the testators. In this view, the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and is, in effect, three wills combined in one. 11. A joint will, though unusual, is not unknown to law. In Halsbury Laws of England, Hailshams Edition, Vol. 34, page 17, para. 12, the law is thus stated :"A joint will is a will made by two or more testators contained in a single document, duly executed by each testator, disposing either of their separate properties, or of their joint property. It is not, however, recognised the English law as a single will. It operates on the death of each testator as his will disposing of his own separate property, and is in effect two or more wills". There is a similar statement of the law in Jarman on Wills, 8th Edition, page 41. The following observations of Farewell, J. in Duddell in re; Roundway v. Roundway, 1932-1 Ch 585 at p. 592 are apposite :"....... in my judgment it is plain on the authorities that there may be a joint will in the sense that if two people make a bargain to make a joint will, effect may be given to that document. On the death of the first of those two persons the will is admitted to probate as a disposition of the property that he possesses. On the death of the second person, assuming that no fresh will has been made, the will is admitted to probate as the disposition of the second persons property ......" 12. It was also argued for the respondents that the will might be construed as a mutual will, but that, in our opinion, is an impossible contention to urge on the recitals of the document. A will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.It cannot be argued that there is, in the present case, a bequest by the testators to themselves. There is nothing in the will to support such a contention, which would be inconsistent with the position taken by the respondents that there was a settlement of the properties inter vivos converting separate properties into joint properties. In this view, on the death of Kunhan Kaimal his properties vested in the legatees under the will dated February 10, 1906 and therefore neither Kesavan Kaimal nor his transferees under the deeds could lay any claim to them.
### Response:
1
### Explanation:
We are unable to read any such implication in those words. It is difficult to imagine how properties which were to be acquired in future could form the subject-matter of a disposition in praesenti. On the other hand, the true purpose of his clause would seem to be to emphasise that the execution of the will does not affect the rights of the testators over their properties, and that is an indication that it is to operate as a will. The matter appears to us to be concluded beyond all doubt by the terms of Cl. 3 which provided that the testators could alienate the properties jointly or severally. If the properties were intended to be impressed with the character of joint property, an alienation by any one of them singly would be incompetent. In coming to the conclusion to which he did, the learned Judge in the Court below was very largely influenced by the fact that the will dealt with, not only the separate properties of the testators but also of their joint properties, and that there was one disposition as regards all of them. But this reasoning is based on a misconception of the recitals in the will.The will does not refer to any joint properties of the testators but to properties jointly acquired by them - which is very different. They would hold these properties as tenants-in-common, and their share therein would devolve as their separate propertiesWhatever value one might attach to the above considerations if there was any doubt or uncertainty as to the meaning of the will, when once it is held that the language thereof is clear and unambiguous, evidence of the subsequent conduct of the parties cannot be admitted for the purpose of limiting or controlling its meaning, in our view, the terms of the will are clear, and the subsequent conduct of the parties sought to be relied on must be disregarded as wholly inadmissible. We are accordingly of opinion that the will dated February 10, 1906, is what it purports to be - a will, and nothing else. It does not confer any rights inter se on the testators; it only vests the title to the properties disposed of by it in the legatees on the death of the testators. In this view, the will must be held to be a testamentary disposition by the three testators of their properties operating on the death of each testator on his properties, and is, in effect, three wills combined in one12. It was also argued for the respondents that the will might be construed as a mutual will, but that, in our opinion, is an impossible contention to urge on the recitals of the document. A will is mutual when two testators confer upon each other reciprocal benefits, as by either of them constituting the other his legatee; that is to say, when the executants fill the roles of both testator and legatee towards each other. But where the legatees are distinct from the testators, there can be no question of a mutual will.It cannot be argued that there is, in the present case, a bequest by the testators to themselves. There is nothing in the will to support such a contention, which would be inconsistent with the position taken by the respondents that there was a settlement of the properties inter vivos converting separate properties into joint properties. In this view, on the death of Kunhan Kaimal his properties vested in the legatees under the will dated February 10, 1906 and therefore neither Kesavan Kaimal nor his transferees under the deeds could lay any claim to them.
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Commissioner Of Income-Tax, West Bengal Calcutta Vs. Calcutta Discount Co., Ltd | this court in Commr. of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ). It is unnecessary to set out the facts of that case and it is sufficient to refer to the relevant observations in the judgment. Shah, J., (as he then was), speaking for the court stated the law at page 17 of the Report thus:"The plea raised by the Incme-tax Officer is that income was could have been entitled earned by the assessee was not earned, and a part of that income was earned by the Hindu undivided families. That according to the Income-tax Officer was brought about by a subterfuge or contrivance. Counsel for the Commissioner contended that if by resorting to a divice or contrivance, income which would normally have been earned by the assesee is divided between the assessee and another person, the Income-tax Offcer would be entitled to bring the entire income to tax if it had been earned by him. But the law does not oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands; income which he could have, but has not earned, is not made taxable as income accrued to him. By adopting a device, if it is made to appear that income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assessee, and if the income has escaped tax in a previous assessment a case for commencing a proceeding for re-assessment under Section 176 (b) may be made out. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the divice depends not upon consideration of morality, but on the operation of the Income-tax Act. Legislative injunction in taxing statutes may not except on peril of penalty, be violated, but it may lawfully be circumvented". It is a well accepted principle of law that an assessee can so arrange his affairs as to minimise his tax burden.Hence, if the assessee in this case has arranged his affairs in such a manner as to reduce his tax liability by starting a subsidiary company and transferring its shares to that subsidiary company and thus foregoing part of its own profits and at the same time enabling its subsidiary to earn some profits, such a course is not impermissible under law."11. Mr. Manchanda contended that a person should not be allowed to adopt a device by which he gives up something through the right hand and receives the same through the left hand. According to him there is no difference between the assessee and its subsidiary and, therefore, when the assessee tries to make profits through its subsidiary, we must presume that the profits were made by the assessee itself. In support of that contention he sought to place reliance on the decision of the House of Lords in Sharkey (Inspector of Taxes) v. Wernher, 1956 AC 58. Therein, the assessee was a breeder of horses. She also had racing stables. She transferred some horses from her stud to the stables. In so doing she debited in her account only the cost of breeding the horses and not their market price. The question arose that whether in computing her income the market price of those horses or merely the cost of breeding them should be taken into consideration. The House of Lords upheld the contention of the Revenue by majority that in computing the profits of the assessee the market price of those horses should be taken into consideration. The ratio of this very decision is similar to the ratio of the decision of this court in Dooars Tea Co. Ltd. v. Commr. of Agricultural Income-tax, West Bengal, 44 ITR 6 = (AIR 1962 SC 186 ). Therein, a tea garden owner raised in his own garden bamboo, thatch and some other agricultural produce. He utilised those products for the purpose of tea business. The question arose whether while assessing the tea garden owner under the Bengal Agricultural Income-tax Act the cost of raising bamboo, thatch, etc., should be taken into consideration or their market price should be taken into consideration. This court upheld the contention of the Revenue that the market price of those products should be taken into consideration in computing the agricultural income of the assesee. The ratio of the decision in Wemhers as well as in Dooars Tea Co.s case does not bear upon the question of law arising for decision in this case. Therein what the courts had to consider was where a person carrying on a trade disposes of a part of his goods not by wayof sale in the course of trade but for his own use, whether the production cost of such goods or the market price of those goods should be taken into consideration. But, in the present case we are called upon to consider the question whether when one trader transfers his goods to another trader at a price less than the market price, the taxing authority can taken into consideration the market price of those goods, ignoring the real price fetched. As mentioned earlier the latter question is no more res integra. It is concluded by the decision of this court in A. Raman and Co.s case, 67 ITR 11 = (AIR 1968 SC 49 ) (supra).12. For the reason mentioned above we are of the opinion that the conclusion reached by the Appellate Assistant Commissioner in accordance with law and it would be as exercise in futility to answer the third question set out above in favour of the Reserve and remit the case back to the Tribunal. In this view of the matter we do not propose to answer that question. | 0[ds]8. As seen earlier the Appellate Assistant Commissioner came to the conclusion that unless the Income-tax Officer on the basis of material before him is able to come to the conclusion that the assessee had really made profits in the transaction, it is not permissible for him to add back to the assessees return any fictional income. In our opinion that conclusion is fully in accordance with law.9. The question that when an assessee transfers some of his stock-in-trade to another person at a price less han the market price, whether that assessee can be considered to have made any profit merely because he has transferred some of his stock-in-trade not at the market price but at a lesser price, came up for consideration before the High Court of Madras in Sri Ramalinga Choodambikai Mills Ltd. v. Commr. of Income-tax, Madras, 28 ITR 952 = (AIR 1956 Mad 145 ). The facts of that case as set out in the head-note are: a limited company sold certain goods showed in its stock-in-trade to its managing agency firm and to another firm in which one of its directors was interested. The sales inquestion were held to be bona fide sales. At the same time it was held that the goods were sold at a concessional rate. The Income-tax Officer sought to tax the assessee therein after computing the profits earned by that firm on the basis of the market price of the goods sold and not the actual price at which those goods were sold. The assessee challenged the said basis. The Tribunal upheld the contention of the assessee. It came to the conclusion that the assessee had, in reality, made no profits at all.The High Court agreed with the conclusion reached by the Tribunal. It opined that in the absence of any evidence to show either that the sales were sham transactions or that the market prices were in fact paid by the purchasers the mere fact that the goods were sold at a concessional rate to benefit the purchasers at the expense of the company would not entitle the Income-tax Department to assess the difference between the market price and the price paid by the purchasers, as profits of theis a well accepted principle of law that an assessee can so arrange his affairs as to minimise his tax burden.Hence, if the assessee in this case has arranged his affairs in such a manner as to reduce his tax liability by starting a subsidiary company and transferring its shares to that subsidiary company and thus foregoing part of its own profits and at the same time enabling its subsidiary to earn some profits, such a course is not impermissible underratio of the decision in Wemhers as well as in Dooars Tea Co.s case does not bear upon the question of law arising for decision in this case. Therein what the courts had to consider was where a person carrying on a trade disposes of a part of his goods not by wayof sale in the course of trade but for his own use, whether the production cost of such goods or the market price of those goods should be taken into consideration. But, in the present case we are called upon to consider the question whether when one trader transfers his goods to another trader at a price less than the market price, the taxing authority can taken into consideration the market price of those goods, ignoring the real price fetched. As mentioned earlier the latter question is no more res integra. It is concluded by the decision of this court in A. Raman and Co.s case, 67 ITR 11 = (AIR 1968 SC 49 ) (supra).12. For the reason mentioned above we are of the opinion that the conclusion reached by the Appellate Assistant Commissioner in accordance with law and it would be as exercise in futility to answer the third question set out above in favour of the Reserve and remit the case back to the Tribunal. In this view of the matter we do not propose to answer that question. | 0 | 2,740 | 728 | ### Instruction:
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this court in Commr. of Income-tax, Gujarat v. A. Raman and Co., 67 ITR 11 = (AIR 1968 SC 49 ). It is unnecessary to set out the facts of that case and it is sufficient to refer to the relevant observations in the judgment. Shah, J., (as he then was), speaking for the court stated the law at page 17 of the Report thus:"The plea raised by the Incme-tax Officer is that income was could have been entitled earned by the assessee was not earned, and a part of that income was earned by the Hindu undivided families. That according to the Income-tax Officer was brought about by a subterfuge or contrivance. Counsel for the Commissioner contended that if by resorting to a divice or contrivance, income which would normally have been earned by the assesee is divided between the assessee and another person, the Income-tax Offcer would be entitled to bring the entire income to tax if it had been earned by him. But the law does not oblige a trader to make the maximum profit that he can out of his trading transactions. Income which accrues to a trader is taxable in his hands; income which he could have, but has not earned, is not made taxable as income accrued to him. By adopting a device, if it is made to appear that income which belonged to the assessee had been earned by some other person, that income may be brought to tax in the hands of the assessee, and if the income has escaped tax in a previous assessment a case for commencing a proceeding for re-assessment under Section 176 (b) may be made out. Avoidance of tax liability by so arranging commercial affairs that charge of tax is distributed is not prohibited. A tax payer may resort to a device to divert the income before it accrues or arises to him. Effectiveness of the divice depends not upon consideration of morality, but on the operation of the Income-tax Act. Legislative injunction in taxing statutes may not except on peril of penalty, be violated, but it may lawfully be circumvented". It is a well accepted principle of law that an assessee can so arrange his affairs as to minimise his tax burden.Hence, if the assessee in this case has arranged his affairs in such a manner as to reduce his tax liability by starting a subsidiary company and transferring its shares to that subsidiary company and thus foregoing part of its own profits and at the same time enabling its subsidiary to earn some profits, such a course is not impermissible under law."11. Mr. Manchanda contended that a person should not be allowed to adopt a device by which he gives up something through the right hand and receives the same through the left hand. According to him there is no difference between the assessee and its subsidiary and, therefore, when the assessee tries to make profits through its subsidiary, we must presume that the profits were made by the assessee itself. In support of that contention he sought to place reliance on the decision of the House of Lords in Sharkey (Inspector of Taxes) v. Wernher, 1956 AC 58. Therein, the assessee was a breeder of horses. She also had racing stables. She transferred some horses from her stud to the stables. In so doing she debited in her account only the cost of breeding the horses and not their market price. The question arose that whether in computing her income the market price of those horses or merely the cost of breeding them should be taken into consideration. The House of Lords upheld the contention of the Revenue by majority that in computing the profits of the assessee the market price of those horses should be taken into consideration. The ratio of this very decision is similar to the ratio of the decision of this court in Dooars Tea Co. Ltd. v. Commr. of Agricultural Income-tax, West Bengal, 44 ITR 6 = (AIR 1962 SC 186 ). Therein, a tea garden owner raised in his own garden bamboo, thatch and some other agricultural produce. He utilised those products for the purpose of tea business. The question arose whether while assessing the tea garden owner under the Bengal Agricultural Income-tax Act the cost of raising bamboo, thatch, etc., should be taken into consideration or their market price should be taken into consideration. This court upheld the contention of the Revenue that the market price of those products should be taken into consideration in computing the agricultural income of the assesee. The ratio of the decision in Wemhers as well as in Dooars Tea Co.s case does not bear upon the question of law arising for decision in this case. Therein what the courts had to consider was where a person carrying on a trade disposes of a part of his goods not by wayof sale in the course of trade but for his own use, whether the production cost of such goods or the market price of those goods should be taken into consideration. But, in the present case we are called upon to consider the question whether when one trader transfers his goods to another trader at a price less than the market price, the taxing authority can taken into consideration the market price of those goods, ignoring the real price fetched. As mentioned earlier the latter question is no more res integra. It is concluded by the decision of this court in A. Raman and Co.s case, 67 ITR 11 = (AIR 1968 SC 49 ) (supra).12. For the reason mentioned above we are of the opinion that the conclusion reached by the Appellate Assistant Commissioner in accordance with law and it would be as exercise in futility to answer the third question set out above in favour of the Reserve and remit the case back to the Tribunal. In this view of the matter we do not propose to answer that question.
### Response:
0
### Explanation:
8. As seen earlier the Appellate Assistant Commissioner came to the conclusion that unless the Income-tax Officer on the basis of material before him is able to come to the conclusion that the assessee had really made profits in the transaction, it is not permissible for him to add back to the assessees return any fictional income. In our opinion that conclusion is fully in accordance with law.9. The question that when an assessee transfers some of his stock-in-trade to another person at a price less han the market price, whether that assessee can be considered to have made any profit merely because he has transferred some of his stock-in-trade not at the market price but at a lesser price, came up for consideration before the High Court of Madras in Sri Ramalinga Choodambikai Mills Ltd. v. Commr. of Income-tax, Madras, 28 ITR 952 = (AIR 1956 Mad 145 ). The facts of that case as set out in the head-note are: a limited company sold certain goods showed in its stock-in-trade to its managing agency firm and to another firm in which one of its directors was interested. The sales inquestion were held to be bona fide sales. At the same time it was held that the goods were sold at a concessional rate. The Income-tax Officer sought to tax the assessee therein after computing the profits earned by that firm on the basis of the market price of the goods sold and not the actual price at which those goods were sold. The assessee challenged the said basis. The Tribunal upheld the contention of the assessee. It came to the conclusion that the assessee had, in reality, made no profits at all.The High Court agreed with the conclusion reached by the Tribunal. It opined that in the absence of any evidence to show either that the sales were sham transactions or that the market prices were in fact paid by the purchasers the mere fact that the goods were sold at a concessional rate to benefit the purchasers at the expense of the company would not entitle the Income-tax Department to assess the difference between the market price and the price paid by the purchasers, as profits of theis a well accepted principle of law that an assessee can so arrange his affairs as to minimise his tax burden.Hence, if the assessee in this case has arranged his affairs in such a manner as to reduce his tax liability by starting a subsidiary company and transferring its shares to that subsidiary company and thus foregoing part of its own profits and at the same time enabling its subsidiary to earn some profits, such a course is not impermissible underratio of the decision in Wemhers as well as in Dooars Tea Co.s case does not bear upon the question of law arising for decision in this case. Therein what the courts had to consider was where a person carrying on a trade disposes of a part of his goods not by wayof sale in the course of trade but for his own use, whether the production cost of such goods or the market price of those goods should be taken into consideration. But, in the present case we are called upon to consider the question whether when one trader transfers his goods to another trader at a price less than the market price, the taxing authority can taken into consideration the market price of those goods, ignoring the real price fetched. As mentioned earlier the latter question is no more res integra. It is concluded by the decision of this court in A. Raman and Co.s case, 67 ITR 11 = (AIR 1968 SC 49 ) (supra).12. For the reason mentioned above we are of the opinion that the conclusion reached by the Appellate Assistant Commissioner in accordance with law and it would be as exercise in futility to answer the third question set out above in favour of the Reserve and remit the case back to the Tribunal. In this view of the matter we do not propose to answer that question.
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MAHESH KUMAR AGARWAL (DEAD) BY LRS Vs. NARESH CHANDRA & ORS | held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83 ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect: The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases. The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits. No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399 relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer. 9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one. 10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for: Provided further that if any application under clause (a) is made in respect of any building let out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation and may, subject to rules, impose such other conditions as it thinks fit. | 1[ds]7. We have already noticed the facts. Indeed, it is much after the period of six months of the notice given by the appellant that the proceeding has been instituted. We are, in fact, inclined to take the view that the notice which has been served would be in conformity with the proviso. However, we cannot proceed to decide the matter on the said basis for the reason that such a premise is inconsistent with the view taken by this Court in the unreported judgment. However, we are of the view with due respect that this Court may have erred in the said judgment. Judicial discipline requires that we should not found our decision on such a view for the reasons already set out. We defer from doing that.In this regard, we notice the judgment of this Court reported in Martin & Harris Ltd. (supra). In the said case, there were two points which arose. The first point revolved around the question as to whether the application which was admittedly filed within the period of three years mentioned in the first proviso could be considered. This Court took the view that the law did not veto the institution of proceedings but instead interdicted entertaining of the proceeding. Answering point no. 2 which is more apposite in the context of the facts of this case, the Court went on to hold, inter alia, as follows:12. However the further question survives for consideration, namely, whether the beneficial provision enacted by the legislature in this connection for the protection of the tenant could be and in fact was waived by the tenant. So far as this question is concerned on the facts of the present case the answer must be in the affirmative. As we have noted earlier after the suit was filed the appellant filed its written statement on 17-9-1986. In the said written statement the appellant, amongst others, did take up the contention that the application as filed by the respondent-landlord under Section 21(1)(a) was not maintainable and was premature as six months period had not expired since the service of notice dated 20-9-1985 when the suit was filed. But curiously enough thereafter the said contention raised by the appellant in written statement was given a go-by for reasons best known to the appellant. It is easy to visualise that if at that stage the appellant had pressed for rejection of the application on the ground of Section 21(1)(a) as not showing completed cause of action due to nonexpiry of six months from the date of service of notice invoking Order VII Rule 11(a) and (d) CPC, alleging that the plaint did not disclose a cause of action or it appeared to be barred by law, respondent-plaintiff could have withdrawn the suit on that ground under Order XXIII Rule 1 sub-rule (3) CPC as the suit based on grounds under Section 21(1)(a) of the Act would have been shown to have suffered from a formal defect and he would have been entitled to claim liberty to file a fresh suit on the same cause of action after the expiry of six months period from the date of service of notice. That opportunity was lost to the respondent-landlord as the appellant did not pursue this contention any further. On the contrary the appellant joined issues on merits by seeking permission to cross-examine the plaintiff on merits of the case on grounds as pleaded under Section 21(1)(a) of the Act. When the decree was passed against the appellant, even while challenging the said decree in appeal no such ground was taken in the memo of appeal, nor was it argued before the first appellate court. Under these circumstances, the High Court rightly held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83 ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect:The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases.The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits.No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399 relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer.9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one.10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for: | 1 | 3,325 | 1,709 | ### 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:
held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83 ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect: The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases. The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits. No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399 relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer. 9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one. 10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for: Provided further that if any application under clause (a) is made in respect of any building let out exclusively for non-residential purposes, the prescribed authority while making the order of eviction shall, after considering all relevant facts of the case, award against the landlord to the tenant an amount not exceeding two years rent as compensation and may, subject to rules, impose such other conditions as it thinks fit.
### Response:
1
### Explanation:
the appellant joined issues on merits by seeking permission to cross-examine the plaintiff on merits of the case on grounds as pleaded under Section 21(1)(a) of the Act. When the decree was passed against the appellant, even while challenging the said decree in appeal no such ground was taken in the memo of appeal, nor was it argued before the first appellate court. Under these circumstances, the High Court rightly held that the contention, regarding the suit being premature as filed before expiry of six months from the date of the notice, must be treated to have been waived by the appellant. Joining issue on this question learned Senior Counsel, Shri Rao, for the appellant, invited our attention to a decision of this Court in the case of Badri Prasad v. Nagarmal [AIR 1959 SC 559 : 1959 Supp (1) SCR 769] . In that case a suit filed by an unregistered company was found to be hit by the provisions of Section 4 sub-section (2) of the Rewa State Companies Act, 1935. The said contention was permitted to be taken for the first time during averments in appeal before this Court. It was held that as this contention went to the root of the maintainability of the suit it could be agitated as a pure question of law. We fail to appreciate how that decision can be of any avail to the appellant in the present case. This Court, placing reliance on a decision of the Privy Council in the case of Surajmull Nargoremull v. Triton Insurance Co. Ltd. [(1924) 52 IA 126 : AIR 1925 PC 83 ] extracted with approval the observations of Lord Sumner at p. 128 of the Report of the Privy Council judgment to the following effect:The suggestion may be at once dismissed that it is too late now to raise the section as an answer to the claim. No court can enforce as valid that which competent enactments have declared shall not be valid, nor is obedience to such an enactment a thing from which a court can be dispensed by the consent of the parties, or by a failure to plead or to argue the point at the outset: Nixon v. Albion Marine Insurance Co. [(1867) LR 2 Exch 338] The enactment is prohibitory. It is not confined to affording a party a protection, of which he may avail himself or not as he pleases.The decision of the Privy Council referred to with approval by this Court in the aforesaid decision clearly indicates that if a proceeding before a court is barred by a law, a plea to that effect being a pure question of law can be agitated any time. But if the prohibition imposed by the statute is with a view to affording protection to a party, such protection can be waived by the party. He may avail of it or he may not avail of it as he may choose. It is not the case of the appellant that the application for possession as filed by the respondent-plaintiff was barred by any provision of law. All that was contended was that it was prematurely filed as six months period had not expired from the date of issuance of the suit notice. That provision obviously was enacted for the benefit and protection of the tenant. It is for the tenant to insist on it or to waive it. On the facts of the present case there is no escape from the conclusion that the said benefit of protection, for reasons best known to the appellant, was waived by it though it was alive to the said contention as it was mentioned at the outset in the written statement filed before the prescribed authority. Thereafter it was not pressed for consideration. The result was that the respondent-landlord by the said conduct of the appellant irretrievably changed his position and would get prejudiced if such a contention is entertained at such a late stage as was tried to be done before the High Court after both the courts had concurrently held on facts that the respondent-plaintiff had proved his case on merits.No doubt, the Court also went on to tide over the objection based on the proviso incorporating the provision based on public policy. A Bench of three learned Judges has affirmed the view taken in the aforesaid judgment but then, we must note that the decision of the Bench of three learned Judges in Nirbhai Kumar v. Maya Devi & Ors. (2009) 5 SCC 399 relates to the requirement under the first part of the first proviso to section 21 of the Act, namely the embargo against entertaining the application except after expiry of three years of the transfer.9. In view of the judgment of this Court in Martin & Harris Ltd.(supra), where this Court has taken the view interpreting the very same provision with which we are concerned, that the objection relating to defective notice is capable of being waived, we are of the view that the appellant should not be denied the benefit of the said view. We further notice that, on facts, the present case stands on a more sturdier footing. In Martin & Harris Ltd. (supra), the tenant had, in fact, raised objection, which he did not press, whereas, in the facts of this case, the tenant has not raised any objection in not only the reply notice, but even in the written statement before the Rent Controller. What fortifies us further is that even in the appeal before the appellate Court, the tenant did not urge the ground. If at all there is a case for waiver, this would be one.10. However, under Section 21 of the Act, as correctly pointed out by the learned Amicus, under the second proviso, in respect of a non-residential premises or a building let out exclusively for non-residential purpose, an order for payment of an amount not exceeding two months rent as compensation is called for:
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Rafiq and Another Vs. Munshilal and Another | DESAI, J.1. Special leave granted.2. We have heard Mr. O. P. Rana, learned counsel for the appellant, and Mr. A.K. Sanghi, learned counsel for the respondent. The High Court disposed of the appeal preferred by the present appellant in the absence of the learned counsel for the appellant. When the appellant became aware of the fact that his appeal had been disposed of in the absence of his advocate, he moved an application in the High Court to recall the order dismissing his appeal and permit him to participate in the hearing of the appeal. This application was rejected by the High Court on the ground that though the application was prepared and drafted and an affidavit was sworn on 29th October, 1980, the same was not presented to the court till November 12, 1980 and that there is no satisfactory explanation for this slackness on the part of the learned advocate who was requested to f ile the application.3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted. | 1[ds]The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench.Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented.The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocatehe is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented.The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate | 1 | 620 | 643 | ### 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:
DESAI, J.1. Special leave granted.2. We have heard Mr. O. P. Rana, learned counsel for the appellant, and Mr. A.K. Sanghi, learned counsel for the respondent. The High Court disposed of the appeal preferred by the present appellant in the absence of the learned counsel for the appellant. When the appellant became aware of the fact that his appeal had been disposed of in the absence of his advocate, he moved an application in the High Court to recall the order dismissing his appeal and permit him to participate in the hearing of the appeal. This application was rejected by the High Court on the ground that though the application was prepared and drafted and an affidavit was sworn on 29th October, 1980, the same was not presented to the court till November 12, 1980 and that there is no satisfactory explanation for this slackness on the part of the learned advocate who was requested to f ile the application.3. The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job. Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench. Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented. The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent. The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate defaulted.
### Response:
1
### Explanation:
The disturbing feature of the case is that under our present adversary legal system where the parties generally appear through their advocates, the obligation of the parties is to select his advocate, brief him, pay the fees demanded by him and then trust the learned advocate to do the rest of the things. The party may be a villager or may belong to a rural area and may have no knowledge of the courts procedure. After engaging a lawyer, the party may remain supremely confident that the lawyer will look after his interest. At the time of the hearing of the appeal, the personal appearance of the party is not only not required but hardly useful. Therefore, the party having done everything in his power to effectively participate in the proceedings can rest assured that he has neither to go to the High Court to inquire as to what is happening in the High Court with regard to his appeal nor is he to act as a watchdog of the advocate that the latter appears in the matter when it is listed. It is no part of his job.Mr. A.K. Sanghi stated that a practice has grown up in the High Court of Allahabad amongst the lawyers that they remain absent when they do not like a particular Bench.Maybe he is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented.The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocatehe is better informed on this matter. Ignorance in this behalf is our bliss. Even if we do not put our seal of imprimatur on the alleged practice by dismissing this matter which may discourage such a tendency, would it not bring justice delivery system into disrepute. What is the fault of the party who having done everything in his power and expected of him would suffer because of the default of his advocate. If we reject this appeal, as Mr. A.K. Sanghi invite d us to do, the only one who would suffer would not be the lawyer who did not appear but the party whose interest he represented.The problem that agitates us is whether it is proper that the party should suffer for the inaction, deliberate omission, or misdemeanour of his agent.The answer obviously is in the negative. Maybe that the learned advocate absented himself deliberately or intentionally. We have no material for ascertaining that aspect of the matter. We say nothing more on that aspect of the matter. However, we cannot be a party to an innocent party suffering injustice merely because his chosen advocate
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U. P. State Mineral Development Corporation and Another Vs. K. C. P. Sinha | by Rule 27 was substituted is not applicable to him and was wrongly applied. 14. Shri Tripathi has next submitted that even if clause (iv) of Rule 27 is held to be valid the application of the said rule in the case of the respondent suffers from the vice of arbitrariness inasmuch as the services of the respondent have been arbitrarily terminated. In support of his aforesaid submission, Shri Tripathi has invoked the principles laid down by this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991(1) SCT 675(SC) : 1990 Supp.(1) SCR 142; Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, 1986(3) SCC 156; and West Bengal Electricity Board v. D.B. Gupta, 1985(3) SCC 166. In our opinion this submission is without substance. As pointed out by this Court in Shyam Lal (supra) compulsory retirement differs from dismissal or removal from service in the sense that while in the case of dismissal or removal involves loss of benefit already earned an officer who is compulsorily retired does not lose any part of the benefit that he has earned and on compulsory retirement he would be entitled to the benefit that he has actually earned and that there is no diminution of the accrued benefit (p. 42). It is not the case of the respondent that he has been denied the benefit which accrued to him, on the basis of his service in the Corporation. The fact that the respondent joined service at a late stage when he was about 41 years old and on account of his being compulsorily retired his services stood terminated after putting in about 9 years of service only does not mean that the order of compulsory retirement ceases to be an order for compulsory retirement and should be treated as an order for removal from service. Merely because the respondent would not be able to earn pension since he had not put in the prescribed period of qualifying service would not invalidate the order of compulsory retirement if it is otherwise found to have been passed in accordance with the requirement of Rule 27(iv). 15. The impugned order of compulsory retirement was passed on the basis of the recommendations of a Screening Committee consisting of the Managing Director and two Directors of the Corporation. In the Confidential Report of the respondent for the year 1983-84 following remarks have been made by the Reviewing Officer: ``I regret that I cannot agree with the Reporting Officer. Shri K.C.P. Sinha evaded responsibility and his general reputation for integrity was bad. He got is own brother-in-law appointed as Sales Agent for Silica Sand and other products without disclosing this fact to the Management and continued to deal with him throughout without disclosing this relationship. His general reputation somehow has not been very good. I was not satisfied even with his administrative ability. I would assess his performance and leadership qualities inadequate. He might be able to work successfully under close supervision but is unsuitable for an independent assignment. His written work is well below average. I would rate his performance as poor. 16. Shri Tripathi has submitted that the said remarks were made by Shri A.P. Singh on May 19, 1985 after he had ceased to be the Managing Director of the Corporation and that he had taken the file with him when he left the Corporation and he returned the file only in 1987. It has also been urged by Shri Tripathi that the respondent had submitted a representation against the remarks and the same has not been considered. The fact of the respondent having submitted a representation against the said remarks was denied by the appellants before the High Court. The High Court felt that this being a disputed question of fact, could not be decided in writ jurisdiction. We are in agreement with the said view of the High Court. Insofar as the remarks are concerned, we are of the view that the same cannot be ignored only because the relevant file was taken away by Shri A.P. Singh, the Reviewing Officer, with him and the file was sent back after two years in 1987. No case of mala fides has been made out by the respondent against the Reviewing Officer. The said remarks contain a reflection on the integrity of the respondent in the matter of discharging his duties. Having regard to the said remarks it is not possible to hold that the compulsory retirement of the respondent by the appointing authority under order dated August 20, 1988 was not in public interest. We are therefore of the view that the order of compulsory retirement of the respondent does not suffer from any infirmity and the High Court was not justified in setting aside the said order. 17. By order dated 27.8.1990 this Court had stayed the reinstatement of the respondent on condition that the appellants will continue to pay 60% of the salary to the respondent and the respondent had agreed that the receipt of the said payment would be subject to further order of this Court. It appears that the respondent was paid 60% of the salary in accordance with the said order but subsequently the Corporation, instead of paying 60% of the salary without obtaining his services considered it essential in the interest of the Corporation to obtain his services and by order dated January 12, 1995 he has been appointed as Chief Marketing Manager and he is functioning on that post now. Since we are upholding the order of compulsory retirement it will be open to the Corporation to consider whether the respondent should continue on the post of Chief Marketing Manager. As regards the period for which the respondent had been paid 60% of the salary in pursuance of the order dated August 27, 1990 the said amount shall be refundable by the respondent to the Corporation. The said amount shall be refunded by the respondent within a period of three months. | 1[ds]In our opinion this submission is without substance. As pointed out by this Court in Shyam Lal (supra) compulsory retirement differs from dismissal or removal from service in the sense that while in the case of dismissal or removal involves loss of benefit already earned an officer who is compulsorily retired does not lose any part of the benefit that he has earned and on compulsory retirement he would be entitled to the benefit that he has actually earned and that there is no diminution of the accrued benefit (p. 42). It is not the case of the respondent that he has been denied the benefit which accrued to him, on the basis of his service in the Corporation. The fact that the respondent joined service at a late stage when he was about 41 years old and on account of his being compulsorily retired his services stood terminated after putting in about 9 years of service only does not mean that the order of compulsory retirement ceases to be an order for compulsory retirement and should be treated as an order for removal from service. Merely because the respondent would not be able to earn pension since he had not put in the prescribed period of qualifying service would not invalidate the order of compulsory retirement if it is otherwise found to have been passed in accordance with the requirement of Rule 27(iv)We are in agreement with the said view of the High Court. Insofar as the remarks are concerned, we are of the view that the same cannot be ignored only because the relevant file was taken away by Shri A.P. Singh, the Reviewing Officer, with him and the file was sent back after two years in 1987. No case of mala fides has been made out by the respondent against the Reviewing Officer. The said remarks contain a reflection on the integrity of the respondent in the matter of discharging his duties. Having regard to the said remarks it is not possible to hold that the compulsory retirement of the respondent by the appointing authority under order dated August 20, 1988 was not in public interest. We are therefore of the view that the order of compulsory retirement of the respondent does not suffer from any infirmity and the High Court was not justified in setting aside the said order. | 1 | 4,273 | 422 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
by Rule 27 was substituted is not applicable to him and was wrongly applied. 14. Shri Tripathi has next submitted that even if clause (iv) of Rule 27 is held to be valid the application of the said rule in the case of the respondent suffers from the vice of arbitrariness inasmuch as the services of the respondent have been arbitrarily terminated. In support of his aforesaid submission, Shri Tripathi has invoked the principles laid down by this Court in Delhi Transport Corporation v. D.T.C. Mazdoor Congress, 1991(1) SCT 675(SC) : 1990 Supp.(1) SCR 142; Central Inland Water Transport Corporation Ltd. and another v. Brojo Nath Ganguly and another, 1986(3) SCC 156; and West Bengal Electricity Board v. D.B. Gupta, 1985(3) SCC 166. In our opinion this submission is without substance. As pointed out by this Court in Shyam Lal (supra) compulsory retirement differs from dismissal or removal from service in the sense that while in the case of dismissal or removal involves loss of benefit already earned an officer who is compulsorily retired does not lose any part of the benefit that he has earned and on compulsory retirement he would be entitled to the benefit that he has actually earned and that there is no diminution of the accrued benefit (p. 42). It is not the case of the respondent that he has been denied the benefit which accrued to him, on the basis of his service in the Corporation. The fact that the respondent joined service at a late stage when he was about 41 years old and on account of his being compulsorily retired his services stood terminated after putting in about 9 years of service only does not mean that the order of compulsory retirement ceases to be an order for compulsory retirement and should be treated as an order for removal from service. Merely because the respondent would not be able to earn pension since he had not put in the prescribed period of qualifying service would not invalidate the order of compulsory retirement if it is otherwise found to have been passed in accordance with the requirement of Rule 27(iv). 15. The impugned order of compulsory retirement was passed on the basis of the recommendations of a Screening Committee consisting of the Managing Director and two Directors of the Corporation. In the Confidential Report of the respondent for the year 1983-84 following remarks have been made by the Reviewing Officer: ``I regret that I cannot agree with the Reporting Officer. Shri K.C.P. Sinha evaded responsibility and his general reputation for integrity was bad. He got is own brother-in-law appointed as Sales Agent for Silica Sand and other products without disclosing this fact to the Management and continued to deal with him throughout without disclosing this relationship. His general reputation somehow has not been very good. I was not satisfied even with his administrative ability. I would assess his performance and leadership qualities inadequate. He might be able to work successfully under close supervision but is unsuitable for an independent assignment. His written work is well below average. I would rate his performance as poor. 16. Shri Tripathi has submitted that the said remarks were made by Shri A.P. Singh on May 19, 1985 after he had ceased to be the Managing Director of the Corporation and that he had taken the file with him when he left the Corporation and he returned the file only in 1987. It has also been urged by Shri Tripathi that the respondent had submitted a representation against the remarks and the same has not been considered. The fact of the respondent having submitted a representation against the said remarks was denied by the appellants before the High Court. The High Court felt that this being a disputed question of fact, could not be decided in writ jurisdiction. We are in agreement with the said view of the High Court. Insofar as the remarks are concerned, we are of the view that the same cannot be ignored only because the relevant file was taken away by Shri A.P. Singh, the Reviewing Officer, with him and the file was sent back after two years in 1987. No case of mala fides has been made out by the respondent against the Reviewing Officer. The said remarks contain a reflection on the integrity of the respondent in the matter of discharging his duties. Having regard to the said remarks it is not possible to hold that the compulsory retirement of the respondent by the appointing authority under order dated August 20, 1988 was not in public interest. We are therefore of the view that the order of compulsory retirement of the respondent does not suffer from any infirmity and the High Court was not justified in setting aside the said order. 17. By order dated 27.8.1990 this Court had stayed the reinstatement of the respondent on condition that the appellants will continue to pay 60% of the salary to the respondent and the respondent had agreed that the receipt of the said payment would be subject to further order of this Court. It appears that the respondent was paid 60% of the salary in accordance with the said order but subsequently the Corporation, instead of paying 60% of the salary without obtaining his services considered it essential in the interest of the Corporation to obtain his services and by order dated January 12, 1995 he has been appointed as Chief Marketing Manager and he is functioning on that post now. Since we are upholding the order of compulsory retirement it will be open to the Corporation to consider whether the respondent should continue on the post of Chief Marketing Manager. As regards the period for which the respondent had been paid 60% of the salary in pursuance of the order dated August 27, 1990 the said amount shall be refundable by the respondent to the Corporation. The said amount shall be refunded by the respondent within a period of three months.
### Response:
1
### Explanation:
In our opinion this submission is without substance. As pointed out by this Court in Shyam Lal (supra) compulsory retirement differs from dismissal or removal from service in the sense that while in the case of dismissal or removal involves loss of benefit already earned an officer who is compulsorily retired does not lose any part of the benefit that he has earned and on compulsory retirement he would be entitled to the benefit that he has actually earned and that there is no diminution of the accrued benefit (p. 42). It is not the case of the respondent that he has been denied the benefit which accrued to him, on the basis of his service in the Corporation. The fact that the respondent joined service at a late stage when he was about 41 years old and on account of his being compulsorily retired his services stood terminated after putting in about 9 years of service only does not mean that the order of compulsory retirement ceases to be an order for compulsory retirement and should be treated as an order for removal from service. Merely because the respondent would not be able to earn pension since he had not put in the prescribed period of qualifying service would not invalidate the order of compulsory retirement if it is otherwise found to have been passed in accordance with the requirement of Rule 27(iv)We are in agreement with the said view of the High Court. Insofar as the remarks are concerned, we are of the view that the same cannot be ignored only because the relevant file was taken away by Shri A.P. Singh, the Reviewing Officer, with him and the file was sent back after two years in 1987. No case of mala fides has been made out by the respondent against the Reviewing Officer. The said remarks contain a reflection on the integrity of the respondent in the matter of discharging his duties. Having regard to the said remarks it is not possible to hold that the compulsory retirement of the respondent by the appointing authority under order dated August 20, 1988 was not in public interest. We are therefore of the view that the order of compulsory retirement of the respondent does not suffer from any infirmity and the High Court was not justified in setting aside the said order.
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Abdussukkur Vs. The State Of West Bengal | to enable the State Government to file an additional affidavit. When the case was taken up thereafter on May 24, 1972, Mr. Chatterjee, learned counsel for the State, stated that no additional affidavit was to be filed on behalf of the State. It would thus follow that the delay on the part of the State Government in considering the representation of the petitioner has remained unexplained. This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner.5. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly. Undue delay on the part of the detaining authority in disposing of the said representation would run counter to the underlying object of clause (5) of Article 22. The requirement about the giving of the earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. That as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention.6. In the case of Jayanarayan Sukul v. State of the West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) the Constitution Bench of this Court laid stress on the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible. It was observed :"It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible."The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the Constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty.7. Reliance in the case of Jayanarayan Sukul v. State of West Bengal (supra) was placed upon an earlier decision of this Court in the case of Khairul Haque v. State of West Bengal (W.P. No. 246 of 1969, decided on September 10, 1969). In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. I. Singh. v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 ((1972) 2 SCC 473.)) unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. The different cases mentioned above were referred to by this Court in the case of Kanti Lal Bose v. State of West Bengal (W.P. No. 8 of 1972, decided on May 5, 1972 ((1972) 2 SCC 529.)) and it was held that unexplained delay of 28 days in considering the detenus representation would invalidate his detention. | 1[ds]The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the Constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty.7. Reliance in the case of Jayanarayan Sukul v. State of West Bengal (supra) was placed upon an earlier decision of this Court in the case of Khairul Haque v. State of West Bengal (W.P. No. 246 of 1969, decided on September 10, 1969). In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. I. Singh. v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 ((1972) 2 SCC 473.)) unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. The different cases mentioned above were referred to by this Court in the case of Kanti Lal Bose v. State of West Bengal (W.P. No. 8 of 1972, decided on May 5, 1972 ((1972) 2 SCC 529.)) and it was held that unexplained delay of 28 days in considering the detenus representation would invalidate his detention. | 1 | 1,655 | 438 | ### 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:
to enable the State Government to file an additional affidavit. When the case was taken up thereafter on May 24, 1972, Mr. Chatterjee, learned counsel for the State, stated that no additional affidavit was to be filed on behalf of the State. It would thus follow that the delay on the part of the State Government in considering the representation of the petitioner has remained unexplained. This unexplained delay, in my opinion, is sufficient to invalidate the detention of the petitioner.5. According to clause (5) of Article 22 of the Constitution, when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. The fact that earliest opportunity has to be afforded to the detenu for making a representation against the detention order necessarily implies that, as and when the representation is made, it should be dealt with promptly. Undue delay on the part of the detaining authority in disposing of the said representation would run counter to the underlying object of clause (5) of Article 22. The requirement about the giving of the earliest opportunity to a detenu to make a representation against the detention order would plainly be reduced to a farce and empty formality if the authority concerned after giving such an opportunity pays no prompt attention to the representation which is submitted by the detenu as a result of that opportunity. It is, therefore, essential that there should be no undue or unexplained delay on the part of the detaining authority in disposing of the representation made by the detenu against the detention order. In case the authority concerned is guilty of such delay the detention would be liable to be assailed on the ground of infraction of Article 22(5) of the Constitution. That as it should be, because the matter relates to the liberty of a subject who has been ordered to be detained without recourse to a regular trial in a court of law. The authority concerned has, therefore, to proceed strictly in accordance with law and any deviation from compliance with legal requirement cannot be countenanced. It has accordingly been laid down in a string of authorities that undue or unexplained delay in the disposal of the representation of the detenu against the detention order would introduce a serious infirmity in the detention.6. In the case of Jayanarayan Sukul v. State of the West Bengal ((1970) 3 SCR 225 : (1970) 1 SCC 219.) the Constitution Bench of this Court laid stress on the imperative necessity of the consideration of the representation made by a detenu by the Government as early as possible. It was observed :"It is established beyond any measure of doubt that the appropriate authority is bound to consider the representation of the detenu as early as possible. The appropriate Government itself is bound to consider the representation as expeditiously as possible. The reason for immediate consideration of the representation is too obvious to be stressed. The personal liberty of a person is at stake. Any delay would not only be an irresponsible act on the part of the appropriate authority but also unconstitutional because the Constitution enshrines the fundamental right of a detenu to have his representation considered and it is imperative that when the liberty of a person is in peril immediate action should be taken by the relevant authorities.No definite time can be laid down within which a representation of a detenu should be dealt with save and except that it is a constitutional right of a detenu to have his representation considered as expeditiously as possible."The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the Constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty.7. Reliance in the case of Jayanarayan Sukul v. State of West Bengal (supra) was placed upon an earlier decision of this Court in the case of Khairul Haque v. State of West Bengal (W.P. No. 246 of 1969, decided on September 10, 1969). In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. I. Singh. v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 ((1972) 2 SCC 473.)) unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. The different cases mentioned above were referred to by this Court in the case of Kanti Lal Bose v. State of West Bengal (W.P. No. 8 of 1972, decided on May 5, 1972 ((1972) 2 SCC 529.)) and it was held that unexplained delay of 28 days in considering the detenus representation would invalidate his detention.
### Response:
1
### Explanation:
The detenu in that case made a representation to the State Government on June 23, 1969 and the same was rejected by the State Government on August 9, 1969. It was held that the Government was guilty of the infraction of the Constitutional provision because of inordinate delay in considering the representation. The petitioner was accordingly set at liberty.7. Reliance in the case of Jayanarayan Sukul v. State of West Bengal (supra) was placed upon an earlier decision of this Court in the case of Khairul Haque v. State of West Bengal (W.P. No. 246 of 1969, decided on September 10, 1969). In that case this Court held that Article 22(5) of the Constitution envisaged a dual obligation of the Government and a corresponding dual right in favour of a detenu, namely, (1) to have his representation independently considered by the Government, and (2) to have that representation, in the light of the facts and circumstances of the case, considered by an Advisory Board. It was observed that the said provision enjoined upon the detaining authority to afford to the detenu the earliest opportunity to make a representation. This fact, in the opinion of the Court, necessarily implied that such a representation must, when made, be considered and disposed of as expeditiously as possible, for otherwise "the obligation to furnish the earliest opportunity to make a representation loses both its purpose and meaning." In Prof. K. I. Singh. v. State of Manipur (AIR 1972 SC 438 : (1972) 2 SCC 576.) , this court held that an unexplained delay of 17 days was enough to render the detention illegal. In Baidya Nath Chunkar v. State of West Bengal (W.P. No. 377 of 1971, decided on March 14, 1972 ((1972) 2 SCC 473.)) unexplained delay of 29 days in considering the representation was held to have vitiated the detention of the detenu. The different cases mentioned above were referred to by this Court in the case of Kanti Lal Bose v. State of West Bengal (W.P. No. 8 of 1972, decided on May 5, 1972 ((1972) 2 SCC 529.)) and it was held that unexplained delay of 28 days in considering the detenus representation would invalidate his detention.
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Mallavarapu Kasivisweswara Rao Vs. Thadikonda Ramulu Firm | obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......" 13. From the above decision of this court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.14. Keeping the aforesaid in mind, let us now see if the respondents in this case had discharged the initial burden, which lay on them to prove that the pronote being Ex.A-21 was not supported by consideration.15. The learned counsel for the appellant, as noted herein earlier, contended that the respondents had neither taken the plea that there was no consideration for the pronote Ex.A-21, either in the reply notice or in the written statement, nor had they adduced any evidence to prove the non-existence of the consideration. The learned counsel for the respondents, however, contended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply notice as also in the written statement. We are unable to accept the contentions of the learned counsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the promotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes having been proved, the presumption under Section 118(a) must come into play and the appellant must be entitled to a decree in the absence of evidence to the contrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118(a) of the Act, the court would not be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso. In view of the decision of this Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra] and also in view of the findings arrived at by the Courts below, we are of the view that since the initial burden on the respondents to show that the pronote being Ex.A-21 was not supported by any consideration was not discharged by them, the High Court was not justified in not decreeing the suit of the appellant in respect of the amount covered by the pro-note Ex.A-21. It is an admitted position that the finding as to the execution of the pronotes had become final. Also, we are of the view that the respondents had not discharged the initial burden of proving the non-existence of consideration either by direct evidence or by preponderance of probabilities. The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the appellant to come to the conclusion that since such evidence was inconsistent with the pronote being Ex.A-21, the appellant could not be given the benefit of the presumption. | 1[ds]12. Under Section 118(a) of the Negotiable Instruments Act, the court is obliged to presume, until the contrary is proved, that the promissory note was made for consideration. It is also a settled position that the initial burden in this regard lies on the defendant to prove the non-existence of consideration by bringing on record such facts and circumstances which would lead the Court to believe the non-existence of the consideration either by direct evidence or by preponderance of probabilities showing that the existence of consideration was improbable, doubtful or illegal. In this connection, reference may be made to a decision of this Court in the case of Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra]. In paragraph 12 of the said decision, this court observed as under:consideration of various judgments as noted hereinabove, the position of law which emerges is that once execution of the promissory note is admitted, the presumption under Section 118(a) would arise that it is supported by a consideration. Such a presumption is rebuttable. The defendant can prove the non-existence of a consideration by raising a probable defence. If the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......From the above decision of this court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.14. Keeping the aforesaid in mind, let us now see if the respondents in this case had discharged the initial burden, which lay on them to prove that the pronote being Ex.A-21 was not supported by consideration.15. The learned counsel for the appellant, as noted herein earlier, contended that the respondents had neither taken the plea that there was no consideration for the pronote Ex.A-21, either in the reply notice or in the written statement, nor had they adduced any evidence to prove the non-existence of the consideration. The learned counsel for the respondents, however, contended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply notice as also in the written statement. We are unable to accept the contentions of the learned counsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the promotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes having been proved, the presumption under Section 118(a) must come into play and the appellant must be entitled to a decree in the absence of evidence to the contrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118(a) of the Act, the court would not be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso. In view of the decision of this Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra] and also in view of the findings arrived at by the Courts below, we are of the view that since the initial burden on the respondents to show that the pronote being Ex.A-21 was not supported by any consideration was not discharged by them, the High Court was not justified in not decreeing the suit of the appellant in respect of the amount covered by the pro-note Ex.A-21. It is an admitted position that the finding as to the execution of the pronotes had become final. Also, we are of the view that the respondents had not discharged the initial burden of proving the non-existence of consideration either by direct evidence or by preponderance of probabilities. The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the appellant to come to the conclusion that since such evidence was inconsistent with the pronote being Ex.A-21, the appellant could not be given the benefit of the presumption. | 1 | 3,407 | 1,332 | ### 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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obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......" 13. From the above decision of this court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.14. Keeping the aforesaid in mind, let us now see if the respondents in this case had discharged the initial burden, which lay on them to prove that the pronote being Ex.A-21 was not supported by consideration.15. The learned counsel for the appellant, as noted herein earlier, contended that the respondents had neither taken the plea that there was no consideration for the pronote Ex.A-21, either in the reply notice or in the written statement, nor had they adduced any evidence to prove the non-existence of the consideration. The learned counsel for the respondents, however, contended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply notice as also in the written statement. We are unable to accept the contentions of the learned counsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the promotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes having been proved, the presumption under Section 118(a) must come into play and the appellant must be entitled to a decree in the absence of evidence to the contrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118(a) of the Act, the court would not be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso. In view of the decision of this Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra] and also in view of the findings arrived at by the Courts below, we are of the view that since the initial burden on the respondents to show that the pronote being Ex.A-21 was not supported by any consideration was not discharged by them, the High Court was not justified in not decreeing the suit of the appellant in respect of the amount covered by the pro-note Ex.A-21. It is an admitted position that the finding as to the execution of the pronotes had become final. Also, we are of the view that the respondents had not discharged the initial burden of proving the non-existence of consideration either by direct evidence or by preponderance of probabilities. The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the appellant to come to the conclusion that since such evidence was inconsistent with the pronote being Ex.A-21, the appellant could not be given the benefit of the presumption.
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will be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. The burden upon the defendant of proving the non-existence of the consideration can be either direct or by bringing on record the preponderance of probabilities by reference to the circumstances upon which he relies. In such an event, the plaintiff is entitled under law to rely upon all the evidence led in the case including that of the plaintiff as well. In case, where the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour. The court may not insist upon the defendant to disprove the existence of consideration by leading direct evidence as the existence of negative evidence is neither possible nor contemplated and even if led, is to be seen with a doubt. The bare denial of the passing of the consideration apparently does not appear to be any defence. Something which is probable has to be brought on record for getting the benefit of shifting the onus of proving to the plaintiff. To disprove the presumption, the defendant has to bring on record such facts and circumstances upon consideration of which the court may either believe that the consideration did not exist or its non-existence was so probable that a prudent man would, under the circumstances of the case, shall act upon the plea that it did not exist......From the above decision of this court, it is pellucid that if the defendant is proved to have discharged the initial onus of proof showing that the existence of consideration was improbable or doubtful or the same was illegal, the onus would shift to the plaintiff who would be obliged to prove it as a matter of fact and upon its failure to prove would disentitle him to the grant of relief on the basis of the negotiable instrument. It is also discernible from the above decision that if the defendant fails to discharge the initial onus of proof by showing the non-existence of the consideration, the plaintiff would invariably be held entitled to the benefit of presumption arising under Section 118(a) in his favour.14. Keeping the aforesaid in mind, let us now see if the respondents in this case had discharged the initial burden, which lay on them to prove that the pronote being Ex.A-21 was not supported by consideration.15. The learned counsel for the appellant, as noted herein earlier, contended that the respondents had neither taken the plea that there was no consideration for the pronote Ex.A-21, either in the reply notice or in the written statement, nor had they adduced any evidence to prove the non-existence of the consideration. The learned counsel for the respondents, however, contended that the respondents had denied the very execution of the pronotes and referred the same as forged both in the reply notice as also in the written statement. We are unable to accept the contentions of the learned counsel for the respondents. In the written statements, the plea of the respondents was that on the face of the pronotes, no cash was paid by the appellant and therefore, the respondents were not liable to pay the amount because the pronotes were forged. It was a finding of the trial court, which was affirmed by the High Court in the impugned judgment that the promotes were indeed executed by the respondents. It was also a finding of the High Court that except in the reply notice issued by the respondents, nowhere had they stated that the consideration had not passed. It is also an admitted position that the findings of the two courts below was that the execution of the pronotes having been proved, the presumption under Section 118(a) must come into play and the appellant must be entitled to a decree in the absence of evidence to the contrary. Having said this, the High Court proceeded to observe that if there was evidence inconsistent with the presumption under Section 118(a) of the Act, the court would not be in a position to pass a decree in favour of the appellant on the basis of the presumption and therefore, proceeded to examine the evidence of the appellant in extenso. In view of the decision of this Court in Bharat Barrel & Drum Manufacturing Company Vs. Amin Chand Payrelal [supra] and also in view of the findings arrived at by the Courts below, we are of the view that since the initial burden on the respondents to show that the pronote being Ex.A-21 was not supported by any consideration was not discharged by them, the High Court was not justified in not decreeing the suit of the appellant in respect of the amount covered by the pro-note Ex.A-21. It is an admitted position that the finding as to the execution of the pronotes had become final. Also, we are of the view that the respondents had not discharged the initial burden of proving the non-existence of consideration either by direct evidence or by preponderance of probabilities. The mere denial, if there be any, by the respondents that no consideration had passed would not have been sufficient and something probable had to be brought on record to prove the non-existence of consideration. In this view of the matter, we are, therefore, of the view that once the execution of the pronote has been proved, the appellant would be entitled to the benefit of the presumption under Section 118(a) of the Negotiable Instruments Act because the respondents had failed to discharge the initial burden and therefore, the High Court was in error in appreciating the evidence of the appellant to come to the conclusion that since such evidence was inconsistent with the pronote being Ex.A-21, the appellant could not be given the benefit of the presumption.
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Abraham T.J Vs. The State of Karnataka | 1. Heard Mr. Salman Khurshid, learned senior Counsel along with Mr. Sriram Parakkat, learned Counsel for the Petitioner and Mr. Basavaprabhu S. Patil, learned senior Counsel along with Mr. M.R. Naik, learned Advocate General for the State of Karnataka. The present special leave petitions depict a picture where one can unhesitatingly say that the conception of a public interest litigation is conceived by some either to establish ones identity in public because he suffers from some kind of identity crisis or he is impelled by some kind of peculiar thought which he feels that every facet of any decision has some public interest to be agitated ini a court of law; although there is none.2. As the facts would unfold, two ladies, namely, Leelavati w/o. Vasudev Bhatt Dixit and Ms. Jayshree w/o. late Vittal Bhatt Dikshit donated 5 acres of land situate in the Taluk Aland in the District of Kalburagi in the State of Karnataka for construction of a "Mini Vidhana Soudha". Be it clarified, "Mini Vidhana Soudha" is a Taluk office meant for officers to function from one compound. Various departments at the Taluk level are required to function in a cohesive and cooperative manner. A decision was taken by the Government not to establish the "Mini Vidhan Soudha" at the originally chosen place at Aland, but to shift to another place in the same Taluk.3. The Petitioner, who claims to be a public spirited person, invoked the jurisdiction of the High Court by filing a public interest litigation challenging such shifting of the place by alleging mala fide and also raising the contention that there had been violation of the conditional gift deed executed by the two ladies. The High Court by a detailed order has declined to interfere.4. It is submitted by the learned senior Counsel appearing for the Petitioner that once a decision had been taken and the gift condition was accepted, the authorities could not have changed the decision and substitute the place.5. Mr. M.R. Naik, learned Advocate General appearing for the State, per contra, would contend that the need for "Mini Vidhana Soudha" at Aland required more area and, therefore, the authorities took a decision to have it on the land situate on Survey No. 496 belonging to the agricultural department of the State. It is also urged by him that the makers of the gift deed are not affected, but the Petitioner has jumped into the fray to build a superstructure to get the limelight.6. In reply to the submission made by Mr. Nayak, it is submitted by Mr. Salman Khurshid that the land that had been taken from the department of agriculture is affecting the local public. It is assiduously put forth by Mr. Naik that the State Government does not have the slightest intention to cause any corrosion in the development of agriculture. He would further urge that the seed farm belonging to the agriculture department has already been shifted.7. Ordinarily, we would have straightway dismissed the special leave petition but we are inclined to say something in addition. Shifting of "Mini Vidhan Saudha" of present nature by an executive decision to six kilometers away is not a matter of public interest. It does not espouse any kind of public cause. It really pertains to smooth administration where the "Mini Vidhan Saudha" or Taluk office complex will be situated. It does not come within the domain of public interest litigation. It is pure and simple abuse of the concept of public interest litigation. Be it clarified that the conception of public interest litigation was not conceived to be used for this purpose. | 0[ds]7. Ordinarily, we would have straightway dismissed the special leave petition but we are inclined to say something in addition. Shifting of "Mini Vidhan Saudha" of present nature by an executive decision to six kilometers away is not a matter of public interest. It does not espouse any kind of public cause. It really pertains to smooth administration where the "Mini Vidhan Saudha" or Taluk office complex will be situated. It does not come within the domain of public interest litigation. It is pure and simple abuse of the concept of public interest litigation. Be it clarified that the conception of public interest litigation was not conceived to be used for this purpose. | 0 | 662 | 130 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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1. Heard Mr. Salman Khurshid, learned senior Counsel along with Mr. Sriram Parakkat, learned Counsel for the Petitioner and Mr. Basavaprabhu S. Patil, learned senior Counsel along with Mr. M.R. Naik, learned Advocate General for the State of Karnataka. The present special leave petitions depict a picture where one can unhesitatingly say that the conception of a public interest litigation is conceived by some either to establish ones identity in public because he suffers from some kind of identity crisis or he is impelled by some kind of peculiar thought which he feels that every facet of any decision has some public interest to be agitated ini a court of law; although there is none.2. As the facts would unfold, two ladies, namely, Leelavati w/o. Vasudev Bhatt Dixit and Ms. Jayshree w/o. late Vittal Bhatt Dikshit donated 5 acres of land situate in the Taluk Aland in the District of Kalburagi in the State of Karnataka for construction of a "Mini Vidhana Soudha". Be it clarified, "Mini Vidhana Soudha" is a Taluk office meant for officers to function from one compound. Various departments at the Taluk level are required to function in a cohesive and cooperative manner. A decision was taken by the Government not to establish the "Mini Vidhan Soudha" at the originally chosen place at Aland, but to shift to another place in the same Taluk.3. The Petitioner, who claims to be a public spirited person, invoked the jurisdiction of the High Court by filing a public interest litigation challenging such shifting of the place by alleging mala fide and also raising the contention that there had been violation of the conditional gift deed executed by the two ladies. The High Court by a detailed order has declined to interfere.4. It is submitted by the learned senior Counsel appearing for the Petitioner that once a decision had been taken and the gift condition was accepted, the authorities could not have changed the decision and substitute the place.5. Mr. M.R. Naik, learned Advocate General appearing for the State, per contra, would contend that the need for "Mini Vidhana Soudha" at Aland required more area and, therefore, the authorities took a decision to have it on the land situate on Survey No. 496 belonging to the agricultural department of the State. It is also urged by him that the makers of the gift deed are not affected, but the Petitioner has jumped into the fray to build a superstructure to get the limelight.6. In reply to the submission made by Mr. Nayak, it is submitted by Mr. Salman Khurshid that the land that had been taken from the department of agriculture is affecting the local public. It is assiduously put forth by Mr. Naik that the State Government does not have the slightest intention to cause any corrosion in the development of agriculture. He would further urge that the seed farm belonging to the agriculture department has already been shifted.7. Ordinarily, we would have straightway dismissed the special leave petition but we are inclined to say something in addition. Shifting of "Mini Vidhan Saudha" of present nature by an executive decision to six kilometers away is not a matter of public interest. It does not espouse any kind of public cause. It really pertains to smooth administration where the "Mini Vidhan Saudha" or Taluk office complex will be situated. It does not come within the domain of public interest litigation. It is pure and simple abuse of the concept of public interest litigation. Be it clarified that the conception of public interest litigation was not conceived to be used for this purpose.
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7. Ordinarily, we would have straightway dismissed the special leave petition but we are inclined to say something in addition. Shifting of "Mini Vidhan Saudha" of present nature by an executive decision to six kilometers away is not a matter of public interest. It does not espouse any kind of public cause. It really pertains to smooth administration where the "Mini Vidhan Saudha" or Taluk office complex will be situated. It does not come within the domain of public interest litigation. It is pure and simple abuse of the concept of public interest litigation. Be it clarified that the conception of public interest litigation was not conceived to be used for this purpose.
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State of Maharashtra Vs. Vyasendra | be clubbed together with the lands held by her husband and the other members of the family for the purpose of computing the ceiling on the holding of the family unit. That question arises in this appeal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, (The Act).2. The respondent Vyasendra filed a return under section 12 of the Act showing the lands held by him and mentioning that certain lands which stood in the name of his wife were her separate property. The Surplus Lands Determination Tribunal held under section 21 of the Act that the total holding of the respondent, including the land which was alleged to be the separate property of his wife, was 67 acres and 34 gunthas. Since the ceiling under the Act is 54 acres, the respondent was asked to surrender an area ad measuring 13 acres and 34 gunthas.3. The Additional Commissioner, Aurangabad, called for the record and proceedings of the Tribunal suo motu. The respondent contended in those proceedings that an area of 17 acres and 27 gunthas which was so ld by his wife after the notified date, was wrongly included in the holding of the family unit on the basis that the sale was mala fide and was not supported by legal necessity. By an order dated January 16, 1979 the Additional Commissioner remanded the matter to the Tribunal for a fresh inquiry into the question as to whether the sale of land effected by the respondents wife after the notified date was supported by legal necessity. The contention was that the respondents wife had so ld the land in order to meet the medical expenses in connection with her illness.The respondent filed a writ petition (No. 1117 of 1979) in the High Court of Bombay against the judgment of the Additional Commissioner. The contention of the respondent before the High Court was that the Additional Commissioner should have remanded the proceedings to the Tribunal not only for the purpose of determining whether the respondents wife had sold the land for the purpose of legal necessity but also for the purpose of determining whether the land which stood in the name of the respondents wife constituted her separate or Stridhan property. This contention was accepted by the High Court which, by its judgment dated April 25, 1979 enlarged the scope of the remand by directing the Tribunal to inquire also into the question as to whether the land which stood in the name of the respondents wife was her separate property. The correctness of the judgment of the High Court is challenged by the State of Maharashtra in this appeal.By an order dated March 8, 1983 this Court had issued a show cause notice to the respondent stating therein that the matter will be finally heard and disposed of at the next hearing. The show cause notice has been served on the respondent but he has not put in his appearance.4. Shri V. S. Desai, who appears on behalf of the appellant, contends that the High Court was in error in enlarging the scope of the order of remand passed by the Additional Commissioner by directing the Tribunal to hold an inquiry into the question whether the land which stood in the name of the respondents wife and which was sold by her allegedly for medical expenses, was her separate property . This contention is well-founded and must be accepted. Section 3(1) of the Act provides, to the extent material, that no family unit shall after the commencement date, hold land in excess of the ceiling areas as determined in the manner provided by the Act. By subsection (2) of section 3, the land held by a family unit in excess of the ceiling area is regarded as surplus land, liable to be dealt with in the manner prescribed by the Act. Section 4(1) of the Act, which is of crucial importance in this case, reads thus:"4. Land held by family unit-(1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family u nit, be deemed to be held by the family unit.Explanation-A Family unit means, -(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses."It is clear from these provisions that all land held by each member of the family unit, whether jointly or separately, is to be deemed to be held by the family unit, for the purpose of determining the ceiling area which the family unit may retain. The expression family unit is defined by the Explanation to mean "a person and his spouse...".5. The circumstance that the land held by a constituent member of the family unit is separate property or stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain. The High Court was therefore in error in directing the Tribunal to inquire into the question as to whether the land which stood in the name of t he respondents wife and which was sold by her was her personal or separate property. Assuming it was so, it is still liable to be aggregated with the land held by the respondent. | 1[ds]The circumstance that the land held by a constituent member of the family unit is separate property or stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain. The High Court was therefore in error in directing the Tribunal to inquire into the question as to whether the land which stood in the name of t he respondents wife and which was sold by her was her personal or separate property. Assuming it was so, it is still liable to be aggregated with the land held by the respondent.In the result, we allow the appeal, set aside the judgment of the High Court and confirm the order of remand passed by the Additional Commissioner, Aurangabad. The Surplus Lands Determination Tribunal will inquire into the limited question referred to it by the Additional Commissioner, Aurangabad, only. | 1 | 1,137 | 242 | ### Instruction:
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be clubbed together with the lands held by her husband and the other members of the family for the purpose of computing the ceiling on the holding of the family unit. That question arises in this appeal under the Maharashtra Agricultural Lands (Ceiling on Holdings) Act, 27 of 1961, (The Act).2. The respondent Vyasendra filed a return under section 12 of the Act showing the lands held by him and mentioning that certain lands which stood in the name of his wife were her separate property. The Surplus Lands Determination Tribunal held under section 21 of the Act that the total holding of the respondent, including the land which was alleged to be the separate property of his wife, was 67 acres and 34 gunthas. Since the ceiling under the Act is 54 acres, the respondent was asked to surrender an area ad measuring 13 acres and 34 gunthas.3. The Additional Commissioner, Aurangabad, called for the record and proceedings of the Tribunal suo motu. The respondent contended in those proceedings that an area of 17 acres and 27 gunthas which was so ld by his wife after the notified date, was wrongly included in the holding of the family unit on the basis that the sale was mala fide and was not supported by legal necessity. By an order dated January 16, 1979 the Additional Commissioner remanded the matter to the Tribunal for a fresh inquiry into the question as to whether the sale of land effected by the respondents wife after the notified date was supported by legal necessity. The contention was that the respondents wife had so ld the land in order to meet the medical expenses in connection with her illness.The respondent filed a writ petition (No. 1117 of 1979) in the High Court of Bombay against the judgment of the Additional Commissioner. The contention of the respondent before the High Court was that the Additional Commissioner should have remanded the proceedings to the Tribunal not only for the purpose of determining whether the respondents wife had sold the land for the purpose of legal necessity but also for the purpose of determining whether the land which stood in the name of the respondents wife constituted her separate or Stridhan property. This contention was accepted by the High Court which, by its judgment dated April 25, 1979 enlarged the scope of the remand by directing the Tribunal to inquire also into the question as to whether the land which stood in the name of the respondents wife was her separate property. The correctness of the judgment of the High Court is challenged by the State of Maharashtra in this appeal.By an order dated March 8, 1983 this Court had issued a show cause notice to the respondent stating therein that the matter will be finally heard and disposed of at the next hearing. The show cause notice has been served on the respondent but he has not put in his appearance.4. Shri V. S. Desai, who appears on behalf of the appellant, contends that the High Court was in error in enlarging the scope of the order of remand passed by the Additional Commissioner by directing the Tribunal to hold an inquiry into the question whether the land which stood in the name of the respondents wife and which was sold by her allegedly for medical expenses, was her separate property . This contention is well-founded and must be accepted. Section 3(1) of the Act provides, to the extent material, that no family unit shall after the commencement date, hold land in excess of the ceiling areas as determined in the manner provided by the Act. By subsection (2) of section 3, the land held by a family unit in excess of the ceiling area is regarded as surplus land, liable to be dealt with in the manner prescribed by the Act. Section 4(1) of the Act, which is of crucial importance in this case, reads thus:"4. Land held by family unit-(1) All land held by each member of a family unit, whether jointly or separately, shall for the purposes of determining the ceiling area of the family u nit, be deemed to be held by the family unit.Explanation-A Family unit means, -(a) a person and his spouse (or more than one spouse) and their minor sons and minor unmarried daughters, if any; or(b) where any spouse is dead, the surviving spouse or spouses, and the minor sons and minor unmarried daughters; or(c) where the spouses are dead, the minor sons and minor unmarried daughters of such deceased spouses."It is clear from these provisions that all land held by each member of the family unit, whether jointly or separately, is to be deemed to be held by the family unit, for the purpose of determining the ceiling area which the family unit may retain. The expression family unit is defined by the Explanation to mean "a person and his spouse...".5. The circumstance that the land held by a constituent member of the family unit is separate property or stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain. The High Court was therefore in error in directing the Tribunal to inquire into the question as to whether the land which stood in the name of t he respondents wife and which was sold by her was her personal or separate property. Assuming it was so, it is still liable to be aggregated with the land held by the respondent.
### Response:
1
### Explanation:
The circumstance that the land held by a constituent member of the family unit is separate property or stridhan property is a matter of no consequence whatsoever for the purpose of determining the ceiling area which the family unit can retain. The respondent, his wife and their minor sons and minor unmarried daughters, if any, are all constituent members of the family unit and all the lands held by them have to be pooled together for the purpose of determining the ceiling area which is permissible to the family unit. The nature or character of their interest in the land held by them is irrelevant for computing the ceiling area which the family unit may retain. The High Court was therefore in error in directing the Tribunal to inquire into the question as to whether the land which stood in the name of t he respondents wife and which was sold by her was her personal or separate property. Assuming it was so, it is still liable to be aggregated with the land held by the respondent.In the result, we allow the appeal, set aside the judgment of the High Court and confirm the order of remand passed by the Additional Commissioner, Aurangabad. The Surplus Lands Determination Tribunal will inquire into the limited question referred to it by the Additional Commissioner, Aurangabad, only.
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Pandit Lakshmikanta Jha Vs. Commissioner of Income Tax, Bihar and Orissa | SHAH J.1. The income-tax Appellate Tribunal referred the following question (as directed by this court to the High Court of Patna under section 66(2) of the Indian Income-tax Act, for opinion "Whether, under the facts and circumstances of the case, the amount of Rs. 1, 30, 785 being the excess of sale proceeds of the building, plant and machinery over the written down value of the business of the said newspaper publications could, in law, be termed to be income, profit and gain of the petitioner?"2. For some time there was difference of opinion in the High Courts on the question whether it is open to the Income-tax authorities in proceedings for assessment of tax to discard the legal character of a transaction and to determine "the substance of a transaction". But it has now been settled by several decisions of this court that in taxing a receipt to income-tax the authorities are only concerned with the legal effect or character of the transaction and not the substance of the transactionSee the judgment of this court in Commissioner of Income-tax v. B. M. Kharwar (C.A. No. 1678 of 1966, decided on August 13, 1968)3. In the present case the transaction which gave rise to the receipt sought to be brought to tax was of the nature of sale ; and it was not even contended that it was not intended to be a sale. It was argued, however, that the vendor and the purchaser being the same the profits arising therefrom were not taxable. That contention cannot be accepted. The High Court was, in our judgment, right in deciding against the assessee4. | 0[ds]In the present case the transaction which gave rise to the receipt sought to be brought to tax was of the nature of sale ; and it was not even contended that it was not intended to be a sale. It was argued, however, that the vendor and the purchaser being the same the profits arising therefrom were not taxable. That contention cannot be accepted. The High Court was, in our judgment, right in deciding against the assessee | 0 | 312 | 90 | ### Instruction:
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SHAH J.1. The income-tax Appellate Tribunal referred the following question (as directed by this court to the High Court of Patna under section 66(2) of the Indian Income-tax Act, for opinion "Whether, under the facts and circumstances of the case, the amount of Rs. 1, 30, 785 being the excess of sale proceeds of the building, plant and machinery over the written down value of the business of the said newspaper publications could, in law, be termed to be income, profit and gain of the petitioner?"2. For some time there was difference of opinion in the High Courts on the question whether it is open to the Income-tax authorities in proceedings for assessment of tax to discard the legal character of a transaction and to determine "the substance of a transaction". But it has now been settled by several decisions of this court that in taxing a receipt to income-tax the authorities are only concerned with the legal effect or character of the transaction and not the substance of the transactionSee the judgment of this court in Commissioner of Income-tax v. B. M. Kharwar (C.A. No. 1678 of 1966, decided on August 13, 1968)3. In the present case the transaction which gave rise to the receipt sought to be brought to tax was of the nature of sale ; and it was not even contended that it was not intended to be a sale. It was argued, however, that the vendor and the purchaser being the same the profits arising therefrom were not taxable. That contention cannot be accepted. The High Court was, in our judgment, right in deciding against the assessee4.
### Response:
0
### Explanation:
In the present case the transaction which gave rise to the receipt sought to be brought to tax was of the nature of sale ; and it was not even contended that it was not intended to be a sale. It was argued, however, that the vendor and the purchaser being the same the profits arising therefrom were not taxable. That contention cannot be accepted. The High Court was, in our judgment, right in deciding against the assessee
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Dulichand Lakshminarayan Vs. The Commissioner Of Income-Tax,Nagpur | or paid to him. Conversely, separate property of a partner is applied first in the payment of his separate debts and the surplus, if any is utilised in meeting the debts of the firm (see S. 49, Indian Partnership Act, 1932). In the Indian Income-tax Act itself a firm is, by section 3, which is the charging section, made a unit of assessment.15. It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of partnership, firmly established in both systems of law still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted, for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James L. J. in - Ex parte Corbett, (1880) 14 Ch D 122 at p. 126 (B). In these circumstances to import the definition of the word "person" occurring in section 3(42) of the General Clauses Act. 1897, into section 4 of the Indian Partnership Act will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into a partnership with another firm or individuals. It is not necessary to refer in detail to those decisions many of which will be found cited in 1955-27 ITR 88 (A) to which a reference has already been made. We need only refer to the case of - Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. , 1948 PC 100 (AIR V. 35) (C), where it has been laid down by the Privy Council that Indian Law has not given legal personality to a firm apart from the partners. This view finds support from and is implicit in the observations made by this Court in the - Commr. of Income-tax, West Bengal v. A. W. Figgies and Co. , 1953 SC 455 (AIR V. 40) (D).16. In re, Jai Dayal Madan Gopal, 1933 All 77 (AIR V. 20) (E) Sulaiman C. J. followed the Calcutta decisions and was not prepared to dissent from the view that the word "person" in S. 239, Indian Contract Act, 1872 should not be interpreted so as to include a firm. The learned Chief Justice, however, expressed the view that it was difficult to say that there was anything is section 239 itself which made the application to that section of the definition of "person" as given in General Clauses Act in any way repugnant.The learned Chief Justice, however, does not appear to have considered whether there was anything repugnant in the subject of partnership law, as it prevails in this country, which operates to exclude the application of that definition to the word "person" occurring in section 239 of the Indian Contract Act. In our opinion, the word "persons" in section 4 of Indian Partnership Act, which has replaced section 239 of the Indian Contract Act, contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual.In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26-A of the Act.17. The learned Advocate for the appellant then urges that, at any rate, the partnership was not illegal, for there was no legal impediment in the way of all the members of all the three constituent firms and the Karta of the Hindu undivided family and the individual entering into an agreement and that, therefore,a valid partnership was constituted by the deed of partnership under consideration. Assuming that this contention is possible in view of the language which has been used in this deed for describing the parties,the position of the appellant will not improve, for, in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26-A of the Act read with R. 2.The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5th share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms. Further all the members of those three firms have not signed the application for registration personally.It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co-partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them. Even if they had such authority - as to which there is no evidence at all on the record - the section and R. 2 require that each partner (not being minor) must sign personally. That admittedly has not been done, and therefore, the application was not in proper form. In our Judgment the answer given by the High Court to the question is correct. | 0[ds]At the hearing before us it was at one time suggested that the partners of the firm consisted of the five individuals who had signed the deed and each of them had an equal share as specified therein and that as all the said five partners had signed the application for registration the requirements of section 26-A of the Act and R. 2 had been fully complied with and the assessee should have been registered as a firm for the purposes of the Act. A perusal of the deed and particularly the portions hereinbefore set out indicate beyond any doubt that the intention of the parties quite clearly was that each of the three constituent firms and not the particular member of each of the said three firms who had signed the deed for his respective firm was to be the partner in the bigger firm constituted under this deed. The contention that only the five individual executants of the deed were the partners of the newly created firm runs counter to the apparent tenor of the deed and cannot be entertained. Indeed learned counsel appearing in support of this appeal did not press thisis difficult to say that there is anything repugnant in the context of section 4 itself which will exclude the application of that definition to the word "person" occurring in section 4.It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of partnership, firmly established in both systems of law still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted, for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James L. J. in - Ex parte Corbett, (1880) 14 Ch D 122 at p. 126 (B). In these circumstances to import the definition of the word "person" occurring in section 3(42) of the General Clauses Act. 1897, into section 4 of the Indian Partnership Act will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into a partnership with another firm orour opinion, the word "persons" in section 4 of Indian Partnership Act, which has replaced section 239 of the Indian Contract Act, contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual.In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26-A of thethat this contention is possible in view of the language which has been used in this deed for describing the parties,the position of the appellant will not improve, for, in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26-A of the Act read with R. 2.The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5th share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms. Further all the members of those three firms have not signed the application for registration personally.It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co-partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them. Even if they had such authority - as to which there is no evidence at all on the record - the section and R. 2 require that each partner (not being minor) must sign personally. That admittedly has not been done, and therefore, the application was not in proper form. In our Judgment the answer given by the High Court to the question is | 0 | 3,660 | 899 | ### Instruction:
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or paid to him. Conversely, separate property of a partner is applied first in the payment of his separate debts and the surplus, if any is utilised in meeting the debts of the firm (see S. 49, Indian Partnership Act, 1932). In the Indian Income-tax Act itself a firm is, by section 3, which is the charging section, made a unit of assessment.15. It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of partnership, firmly established in both systems of law still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted, for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James L. J. in - Ex parte Corbett, (1880) 14 Ch D 122 at p. 126 (B). In these circumstances to import the definition of the word "person" occurring in section 3(42) of the General Clauses Act. 1897, into section 4 of the Indian Partnership Act will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into a partnership with another firm or individuals. It is not necessary to refer in detail to those decisions many of which will be found cited in 1955-27 ITR 88 (A) to which a reference has already been made. We need only refer to the case of - Bhagwanji Morarji Goculdas v. Alembic Chemical Works Co. Ltd. , 1948 PC 100 (AIR V. 35) (C), where it has been laid down by the Privy Council that Indian Law has not given legal personality to a firm apart from the partners. This view finds support from and is implicit in the observations made by this Court in the - Commr. of Income-tax, West Bengal v. A. W. Figgies and Co. , 1953 SC 455 (AIR V. 40) (D).16. In re, Jai Dayal Madan Gopal, 1933 All 77 (AIR V. 20) (E) Sulaiman C. J. followed the Calcutta decisions and was not prepared to dissent from the view that the word "person" in S. 239, Indian Contract Act, 1872 should not be interpreted so as to include a firm. The learned Chief Justice, however, expressed the view that it was difficult to say that there was anything is section 239 itself which made the application to that section of the definition of "person" as given in General Clauses Act in any way repugnant.The learned Chief Justice, however, does not appear to have considered whether there was anything repugnant in the subject of partnership law, as it prevails in this country, which operates to exclude the application of that definition to the word "person" occurring in section 239 of the Indian Contract Act. In our opinion, the word "persons" in section 4 of Indian Partnership Act, which has replaced section 239 of the Indian Contract Act, contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual.In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26-A of the Act.17. The learned Advocate for the appellant then urges that, at any rate, the partnership was not illegal, for there was no legal impediment in the way of all the members of all the three constituent firms and the Karta of the Hindu undivided family and the individual entering into an agreement and that, therefore,a valid partnership was constituted by the deed of partnership under consideration. Assuming that this contention is possible in view of the language which has been used in this deed for describing the parties,the position of the appellant will not improve, for, in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26-A of the Act read with R. 2.The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5th share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms. Further all the members of those three firms have not signed the application for registration personally.It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co-partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them. Even if they had such authority - as to which there is no evidence at all on the record - the section and R. 2 require that each partner (not being minor) must sign personally. That admittedly has not been done, and therefore, the application was not in proper form. In our Judgment the answer given by the High Court to the question is correct.
### Response:
0
### Explanation:
At the hearing before us it was at one time suggested that the partners of the firm consisted of the five individuals who had signed the deed and each of them had an equal share as specified therein and that as all the said five partners had signed the application for registration the requirements of section 26-A of the Act and R. 2 had been fully complied with and the assessee should have been registered as a firm for the purposes of the Act. A perusal of the deed and particularly the portions hereinbefore set out indicate beyond any doubt that the intention of the parties quite clearly was that each of the three constituent firms and not the particular member of each of the said three firms who had signed the deed for his respective firm was to be the partner in the bigger firm constituted under this deed. The contention that only the five individual executants of the deed were the partners of the newly created firm runs counter to the apparent tenor of the deed and cannot be entertained. Indeed learned counsel appearing in support of this appeal did not press thisis difficult to say that there is anything repugnant in the context of section 4 itself which will exclude the application of that definition to the word "person" occurring in section 4.It is clear from the foregoing discussion that the law, English as well as Indian, has, for some specific purposes, some of which are referred to above, relaxed its rigid notions and extended a limited personality to a firm. Nevertheless, the general concept of partnership, firmly established in both systems of law still is that a firm is not an entity or "person" in law but is merely an association of individuals and a firm name is only a collective name of those individuals who constitute the firm. In other words, a firm name is merely an expression, only a compendious mode of designating the persons who have agreed to carry on business in partnership. According to the principles of English jurisprudence, which we have adopted, for the purposes of determining legal rights "there is no such thing as a firm known to the law" as was said by James L. J. in - Ex parte Corbett, (1880) 14 Ch D 122 at p. 126 (B). In these circumstances to import the definition of the word "person" occurring in section 3(42) of the General Clauses Act. 1897, into section 4 of the Indian Partnership Act will, according to lawyers, English or Indian, be totally repugnant to the subject of partnership law as they know and understand it to be. It is in this view of the matter that it has been consistently held in this country that a firm as such is not entitled to enter into a partnership with another firm orour opinion, the word "persons" in section 4 of Indian Partnership Act, which has replaced section 239 of the Indian Contract Act, contemplates only natural or artificial, i.e., legal persons and for the reasons stated above, a firm is not a "person" and as such is not entitled to enter into a partnership with another firm or Hindu undivided family or individual.In this view of the matter there can arise no question of registration of a partnership purporting to be one between three firms, a Hindu undivided family business and an individual as a firm under section 26-A of thethat this contention is possible in view of the language which has been used in this deed for describing the parties,the position of the appellant will not improve, for, in order to be entitled to the benefit of registration under the Act, it will have to be shown that the shares of all individual partners are specified in the deed and that all the partners have personally signed the application for registration as required by section 26-A of the Act read with R. 2.The deed specifies that each of the five constituent parties is entitled to an equal, i.e., 1/5th share but it does not specify the individual shares of each of the partners of each of the three smaller constituent firms. Further all the members of those three firms have not signed the application for registration personally.It is said that each of the three persons who executed the deed for the three smaller firms must be regarded as having the authority of their co-partners in their respective firms to sign the application for registration just as they had their authority to execute the deed itself for them. Even if they had such authority - as to which there is no evidence at all on the record - the section and R. 2 require that each partner (not being minor) must sign personally. That admittedly has not been done, and therefore, the application was not in proper form. In our Judgment the answer given by the High Court to the question is
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Sidhartha Sarawgi Vs. Board Of Trustees For Port Of Kolkata&Or | Central Government. (2) Subject to the provisions of sub- section (1), the form and manner in which any contract shall be made under this Act shall be such as may be prescribed by regulations made in this behalf. (3) No contract which is not made in accordance with the provisions of this Act and the regulations made thereunder shall be binding on the Board. 14. In exercise of the power under Section 21 on delegation of powers, the Board of the Kolkata Port Trust passed Resolution No. 82 dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment notices. The text of the Resolution reads as follows: .. Resolution No. 82- Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21(a) of the Major Port Trust Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorizing him to issue ejectment notices, subject to the sanction of the Government. 15. It is the contention of the petitioners that the power to terminate the lease having been specifically conferred on the Chairman, the steps now taken by the Land Manager by issuing the impugned notices for eviction, are clearly without jurisdiction and, hence, illegal and inoperative. On behalf of the Board of Kolkata Port Trust, it is contended that the decision to terminate the lease has actually been taken by the Chairman and the issuance of notice of termination in furtherance of the decision taken by the Chairman alone, has been delegated to the Land Manager. Our attention is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads as under: - CALCUTTA PORT TRUST No. 6480/3/0 January 22, 1990 OFFICE ORDER Henceforth ejectment (sic) notices in respect of leases determined with my approval may be signed by any one of the undernoted officers: Calcutta 1) Deputy Chairman (Calcutta) 2) Land Manager Haldia 1) Deputy Chairman (Haldia) 2) General Manager (Mas) 3) Manager (I&C.F) 16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of sub-delegation. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard. 17. The situation can be viewed from another angle as well. Section 21 of The General Clauses Act, 1897 provides that power to issue would include power to add, amend, vary or rescind. The provision reads as follows: 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.-Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contract. Negating the same, it was held as follows: It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner. We respectfully endorse the legal principle. | 0[ds]2. Delegation is the act of making or commissioning a delegate. It generally means parting of powers by the person who grants the delegation and conferring of an authority to do things which otherwise that person would have to do himself. Delegation is defined in Blacks Law Dictionary as the act of entrusting another with authority by empowering another to act as an agent or representative. In P. Ramanatha Aiyars, The Law Lexicon, delegation is the act of making or commissioning a delegate. Delegation generally means parting of powers by the person who grants the delegation, but it also means conferring of an authority to do things which otherwise that person would have to do himself. Justice Mathew in Gwalior Rayon Silk Manufacturing (Wvg.) Co. Ltd. v. The Assistant Commissioner of Sales Tax and Others [(1974) 4 SCC 98] , has succinctly discussed the concept of delegation. Paragraph 37 reads as follows:37. … Delegation is not the complete handing over or transference of a power from one person or body of persons to another. Delegation may be defined as the entrusting, by a person or body of persons, of the exercise of a power residing in that person or body of persons, to another person or body of persons, with complete power of revocation or amendment remaining in the grantor or delegator. It is important to grasp the implications of this, for, much confusion of thought has unfortunately resulted from assuming that delegation involves or may involve, the complete abdication or abrogation of a power. This is precluded by the definition. Delegation often involves the granting of discretionary authority to another, but such authority is purely derivative. The ultimate power always remains in the delegator and is never renounced5. The issue was considered by this Court in Jamal Uddin Ahmad v. Abu Saleh Najmuddin and Another [(2003) 4 SCC 257] in the context of the procedure for filing of the election petitions under Section 81 of the Representation of Peoples Act, 1951. It was held that the ministerial or administrative functions of the authority on whom the powers are conferred by the statute can be exercised by the authorized officers. It was held that:13. The functions discharged by a High Court can be divided broadly into judicial and administrative functions. The judicial functions are to be discharged essentially by the Judges as per the Rules of the Court and cannot be delegated. However, administrative functions need not necessarily be discharged by the Judges by themselves, whether individually or collectively or in a group of two or more, and may be delegated or entrusted by authorization to subordinates unless there be some rule of law restraining such delegation or authorisation. Every High Court consists of some administrative and ministerial staff which is as much a part of the High Court as an institution and is meant to be entrusted with the responsibility of discharging administrative and ministerial functions. There can be delegation as also there can be authorization in favour of the Registry and the officials therein by empowering or entrusting them with authority or by permitting a few things to be done by them for and on behalf of the Court so as to aid the Judges in discharge of their judicial functioning. Authorization may take the form of formal conferral or sanction or may be by way of approval or countenance. Such delegation or authorization is not a matter of mere convenience but a necessity at times. The Judges are already overburdened with the task of performing judicial functions and the constraints on their time and energy are so demanding that it is in public interest to allow them to devote time and energy as much as possible in discharging their judicial functions, relieving them of the need for diverting their limited resources of time and energy to such administrative or ministerial functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength…7. It would also be useful in this context to refer to the decision of this Court in Barium Chemicals Limited and Another v. The Company Law Board and Another [AIR 1967 SC 295 ] wherein it is held at paragraph 36 as follows:…the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted8. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential andl functions of the delegate should also be borne in mind. While there cannot ben of any essential functions, in order to achieve the intended object of the delegation, thed to be performed under the authority and supervision of the delegate9. Sometimes, in the plenary legislation itself, the lawmakers may provide for such. That is what we see under Section 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contractNegating the same, it was held as follows:It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner | 0 | 3,967 | 1,798 | ### 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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Central Government. (2) Subject to the provisions of sub- section (1), the form and manner in which any contract shall be made under this Act shall be such as may be prescribed by regulations made in this behalf. (3) No contract which is not made in accordance with the provisions of this Act and the regulations made thereunder shall be binding on the Board. 14. In exercise of the power under Section 21 on delegation of powers, the Board of the Kolkata Port Trust passed Resolution No. 82 dated 26.05.1988 delegating the power to terminate any lease on the Chairman. The Chairman was also authorized by the said Resolution to issue ejectment notices. The text of the Resolution reads as follows: .. Resolution No. 82- Resolved to sanction the proposal for delegation of powers to the Chairman by invocation of section 21(a) of the Major Port Trust Act, 1963, the power to terminate leases sanctioned by the Trustees and to authorizing him to issue ejectment notices, subject to the sanction of the Government. 15. It is the contention of the petitioners that the power to terminate the lease having been specifically conferred on the Chairman, the steps now taken by the Land Manager by issuing the impugned notices for eviction, are clearly without jurisdiction and, hence, illegal and inoperative. On behalf of the Board of Kolkata Port Trust, it is contended that the decision to terminate the lease has actually been taken by the Chairman and the issuance of notice of termination in furtherance of the decision taken by the Chairman alone, has been delegated to the Land Manager. Our attention is also invited to Office Order No. 6480/3/0 dated 22.01.1990, which reads as under: - CALCUTTA PORT TRUST No. 6480/3/0 January 22, 1990 OFFICE ORDER Henceforth ejectment (sic) notices in respect of leases determined with my approval may be signed by any one of the undernoted officers: Calcutta 1) Deputy Chairman (Calcutta) 2) Land Manager Haldia 1) Deputy Chairman (Haldia) 2) General Manager (Mas) 3) Manager (I&C.F) 16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of sub-delegation. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard. 17. The situation can be viewed from another angle as well. Section 21 of The General Clauses Act, 1897 provides that power to issue would include power to add, amend, vary or rescind. The provision reads as follows: 21. Power to issue, to include power to add to, amend, vary or rescind notifications, orders, rules or bye-laws.-Where, by any Central Act or Regulations a power to issue notifications, orders, rules or bye-laws is conferred, then that power includes a power, exercisable in the like manner and subject to the like sanction and conditions (if any), to add to, amend, vary or rescind any notifications, orders, rules or bye-laws so issued. 18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contract. Negating the same, it was held as follows: It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner. We respectfully endorse the legal principle.
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functions, which, on any principle of propriety, logic, or necessity are not required necessarily to be performed by the Judges. Receiving a cause or a document and making it presentable to a Judge for the purpose of hearing or trial and many a functions postdecision, which functions are administrative and ministerial in nature, can be and are generally entrusted or made over to be discharged by the staff of the High Court, often by making a provision in the Rules or under the orders of the Chief Justice or by issuing practice directions, and at times, in the absence of rules, by sheer practice. The practice gathers the strength of law and the older the practice the greater is the strength…7. It would also be useful in this context to refer to the decision of this Court in Barium Chemicals Limited and Another v. The Company Law Board and Another [AIR 1967 SC 295 ] wherein it is held at paragraph 36 as follows:…the maxim delegatus non potest delegare must not be pushed too far. The maxim does not embody a rule of law. It indicates a rule of construction of a statute or other instrument conferring an authority. Prima facie, a discretion conferred by a statute on any authority is intended to be exercised by that authority and by no other. But the intention may be negatived by any contrary indications in the language, scope or object of the statute. The construction that would best achieve the purpose and object of the statute should be adopted8. The Constitution confers power and imposes duty on the Legislature to make laws and the said functions cannot be delegated by the Legislature to the executive. The Legislature is constitutionally required to keep in its own hands the essential legislative functions which consist of the determination of legislative policy and its formulation as a binding rule of conduct. After the performance of the essential legislative function by the Legislature and laying the guiding policy, the Legislature may delegate to the executive or administrative authority, any ancillary or subordinate powers that are necessary for giving effect to the policy and purposes of the enactment. In construing the scope and extent of delegated power, the difference between the essential andl functions of the delegate should also be borne in mind. While there cannot ben of any essential functions, in order to achieve the intended object of the delegation, thed to be performed under the authority and supervision of the delegate9. Sometimes, in the plenary legislation itself, the lawmakers may provide for such. That is what we see under Section 21 and 34 of the Major Port Trusts Act, 1963, which we shall be discussing in more detail at a later part of this judgment16. The power that is delegated to the Chairman as per Resolution No. 82 is the power to terminate a lease. The decision to terminate has been taken by the Chairman only and there is no dispute in that regard. In implementation of the decision thus taken by the Chairman to terminate the leases, the Chairman has authorized the Land Manager to issue the ejectment notices. The issuance of such notices is a mere ministerial act for the implementation of a decision already taken by the Chairman as delegated by the Board. The Chairman having duly authorized the Land Manager in that regard, it cannot be said that the ejectment notice issued by the Land Manager is without jurisdiction. It is not a case of. It is merely a ministerial exercise of issuance of a notice in implementation of the decision, as per the specific authorization in that regard18. Admittedly, in the case of the petitioners, the lease deed has been executed by the Land Manager. The execution of the lease deed is as per the decision by the competent authority. If that be so, the lease can be terminated by the same authority who executed the lease deed, after a decision has been made in that regard by the competent authority. In P. Saibaba Rao S/o Amruth Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Dr. N. Sudhakar Rao S/o. Late N. Yethiraja Rao v. Dr. Dugyala Srinivasa Rao S/o Swami Rao and Ors. [Election Petition Nos. 1 and 3 of 2004, Judgment dated 30.08.2007] High Court of Andhra Pradesh considered the situation of termination of a contract. The contention was that the Superintendent Engineer was not competent to terminate the contract in terms of the guidelines. His authority was only to execute the contractNegating the same, it was held as follows:It is very interesting to notice that entry 5(b) of the Government order as above speaks of instruments relating to execution of works including Highways. The officer authorized to execute these instruments among others is SE. Chapter II of PWD Code deals with, Works. It contains paragraphs 88 to 224. Nowhere has it mentioned any authority, who is conferred with power to terminate/cancel the contract entered into by SE as per Paragraph 159 of PWD Code read with executive instructions. Petitioners have failed to bring any evidence in this regard. Furthermore, in G.O.Ms. No. 2209, dated 24.9.1965, it was clarified that SE is competent to execute contracts and piece work agreements upto the limit of tenders accepted by the competent authority regardless of whether they were accepted by SE and irrespective of restrictions imposed on the powers of SE in the matter of acceptance of contract. This means that SE is competent to enter into contract and also for terminating/ closing/cancelling the contract. The power to enter into contracts or the authorisation to execute instruments also includes the power to execute contracts or instruments cancelling a contract. It may also be noticed that under preliminary specification Nos. 7 and 8 of APSS, SE is competent to alter the standard specifications for a particular contract. Thus authorization given to SE under G.O.Ms. No. 1632, dated 24.10.1958, is all pervasive and the same cannot be interpreted in a restrictive manner
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Connectwell Industries Private Limited Vs. Union of India & Others | property by the Income Tax Department.16. The said schedule provides for procedure for recovery of tax. Rule 2 thereof reads as under:"Issue of notice. 2) When a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realize the amount under this Schedule."This Rule provides for a notice to the defaulter after a certificate is drawn up by the Tax Recovery Officer for the recovery of arrears. Rule 16 thereof reads thus;"Private alienation to be void in certain cases.16. (1) Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money.(2) Where an attachment has been made under the Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other, moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment."17. It is clear, therefore, that after notice under Rule 2 is served on the defaulter the defaulter or his representative in interest cannot deal with the property belonging to him except with the permission of the Tax Recovery Officer and under Sub-rule (2) of Rule 16, if any attachment has been made under this schedule any private transfer or delivery of the property or of any interest therein contrary to such attachment is void against all claims enforceable under the attachment.18. In this case notice under Rule 2 was issued to BPIL on 11/2/2003. The said immovable property was attached under Rule 48 of the said schedule on 17/6/03 vide ITCP-16. Form No.ITCP 16 annexed to the affidavit of the Tax Recovery Officer states that the defaulter BPIL had failed to pay a sum of Rs.20,46,813/- payable under certificate dated 11/2/2003 and hence the said property is attached. The sale in favour of the petitioners has taken place on 9/12/2004 and the sale certificate is issued on 14/1/05. Therefore, as per Rule 2 read with Rule 16 of the said Schedule the said sale is void.19. We are not impressed by Mr. Tulzapurkars contention that because the sale was at the instance of the 2nd respondent under the orders of the DRT, it will not be covered by Rule 16. The defaulter could not have sold the property after receipt of notice under Rule 2 and after attachment of the property by the Income Tax Department. Therefore, in the circumstances of the case even respondent 2 could not have ordered the sale of the said property. It is not possible for us to set aside the attachment in this manner. Attachment levied by the Income-Tax Department cannot cease to operate because of subsequent sale. Dues of the Department must be paid. Attachment will continue to operate so long as the dues are not paid and the fact that property has changed hands will, in our opinion, make no difference.20. In our opinion, the reliance placed by Mr. Tulzapurkar on the judgment of this court in P. Kumars case (supra) is misplaced. In that case the petitioners therein had entered into an agreement of sale dated 18/8/1984 with one company. Possession was handed over to the petitioners. The petitioners and the company jointly filed Form No.37EE before the Competent Authority under Section 269 AB(2) of the Income Tax Act. In March 1987, the Income Tax Department attempted to attach the said property. Petitioners wrote a letter to the Income Tax Department stating that they had purchased the premises without notice of any proceedings against the said company in respect of assessment year 1983-84. The company had filed return for the assessment year 1983-84 on 27/2/84, though the date of completion of the assessment was not indicated.21. On facts before it a learned Single Judge of this court held that the petitioner and the said company had jointly filed Form No.37EE in the office of the Competent Authority. The assessment of the said company was not completed until March, 1986 and hence no demand could, thus be pending against the said company at the relevant time. This court observed that the petitioners therein had filed the requisite forms and, therefore, it was for the department to raise objection against the purchase of the premises from the said company. This court observed that affidavit in reply was also not filed by the department. In the circumstances, this court quashed the notice of attachment.22. In this case, the Income Tax Department has filed affidavit. The petitioner has not chosen to make BPIL party. It is not even averred in the petition that no demand was pending against BPIL. Mrs. Majas, the Tax Recovery Officer of the Income Tax Department has stated in her affidavit that the Income Tax Department had initiated recovery proceeding against BPIL for realization of dues of more than Rs.20 lacs. She has annexed to her affidavit a table giving all particulars about the assessment years, demand to be recovered, date of service of notice and dates of payment. We are not in a position to record a finding that in the facts of this case, there was no pending demand, particularly when there is no specific challenge raised in the petition. In our opinion, the judgment of this court in P. Kumars case will have to be confined to its own facts.23. In the circumstances, we are of the opinion that there is no merit in this writ petition. | 0[ds]17. It is clear, therefore, that after notice under Rule 2 is served on the defaulter the defaulter or his representative in interest cannot deal with the property belonging to him except with the permission of the Tax Recovery Officer and under(2) of Rule 16, if any attachment has been made under this schedule any private transfer or delivery of the property or of any interest therein contrary to such attachment is void against all claims enforceable under the attachment.18. In this case notice under Rule 2 was issued to BPIL on 11/2/2003. The said immovable property was attached under Rule 48 of the said schedule on 17/6/03 videForm No.ITCP 16 annexed to the affidavit of the Tax Recovery Officer states that the defaulter BPIL had failed to pay a sum of Rs.20,46,813/payable under certificate dated 11/2/2003 and hence the said property is attached. The sale in favour of the petitioners has taken place on 9/12/2004 and the sale certificate is issued on 14/1/05. Therefore, as per Rule 2 read with Rule 16 of the said Schedule the said sale is void.19. We are not impressed by Mr. Tulzapurkars contention that because the sale was at the instance of the 2nd respondent under the orders of the DRT, it will not be covered by Rule 16. The defaulter could not have sold the property after receipt of notice under Rule 2 and after attachment of the property by the Income Tax Department. Therefore, in the circumstances of the case even respondent 2 could not have ordered the sale of the said property. It is not possible for us to set aside the attachment in this manner. Attachment levied by theDepartment cannot cease to operate because of subsequent sale. Dues of the Department must be paid. Attachment will continue to operate so long as the dues are not paid and the fact that property has changed hands will, in our opinion, make no difference.20. In our opinion, the reliance placed by Mr. Tulzapurkar on the judgment of this court in P. Kumars case (supra) is misplaced. In that case the petitioners therein had entered into an agreement of sale dated 18/8/1984 with one company. Possession was handed over to the petitioners. The petitioners and the company jointly filed Form No.37EE before the Competent Authority under Section 269 AB(2) of the Income Tax Act. In March 1987, the Income Tax Department attempted to attach the said property. Petitioners wrote a letter to the Income Tax Department stating that they had purchased the premises without notice of any proceedings against the said company in respect of assessment yearThe company had filed return for the assessment yearon 27/2/84, though the date of completion of the assessment was not indicated.21. On facts before it a learned Single Judge of this court held that the petitioner and the said company had jointly filed Form No.37EE in the office of the Competent Authority. The assessment of the said company was not completed until March, 1986 and hence no demand could, thus be pending against the said company at the relevant time. This court observed that the petitioners therein had filed the requisite forms and, therefore, it was for the department to raise objection against the purchase of the premises from the said company. This court observed that affidavit in reply was also not filed by the department. In the circumstances, this court quashed the notice of attachment.22. In this case, the Income Tax Department has filed affidavit. The petitioner has not chosen to make BPIL party. It is not even averred in the petition that no demand was pending against BPIL. Mrs. Majas, the Tax Recovery Officer of the Income Tax Department has stated in her affidavit that the Income Tax Department had initiated recovery proceeding against BPIL for realization of dues of more than Rs.20 lacs. She has annexed to her affidavit a table giving all particulars about the assessment years, demand to be recovered, date of service of notice and dates of payment. We are not in a position to record a finding that in the facts of this case, there was no pending demand, particularly when there is no specific challenge raised in the petition. In our opinion, the judgment of this court in P. Kumars case will have to be confined to its own facts.23. In the circumstances, we are of the opinion that there is no merit in this writ petition. | 0 | 2,552 | 809 | ### Instruction:
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property by the Income Tax Department.16. The said schedule provides for procedure for recovery of tax. Rule 2 thereof reads as under:"Issue of notice. 2) When a certificate has been drawn up by the Tax Recovery Officer for the recovery of arrears under this Schedule, the Tax Recovery Officer shall cause to be served upon the defaulter a notice requiring the defaulter to pay the amount specified in the certificate within fifteen days from the date of service of the notice and intimating that in default steps would be taken to realize the amount under this Schedule."This Rule provides for a notice to the defaulter after a certificate is drawn up by the Tax Recovery Officer for the recovery of arrears. Rule 16 thereof reads thus;"Private alienation to be void in certain cases.16. (1) Where a notice has been served on a defaulter under rule 2, the defaulter or his representative in interest shall not be competent to mortgage, charge, lease or otherwise deal with any property belonging to him except with the permission of the Tax Recovery Officer, nor shall any civil court issue any process against such property in execution of a decree for the payment of money.(2) Where an attachment has been made under the Schedule, any private transfer or delivery of the property attached or of any interest therein and any payment to the defaulter of any debt, dividend or other, moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment."17. It is clear, therefore, that after notice under Rule 2 is served on the defaulter the defaulter or his representative in interest cannot deal with the property belonging to him except with the permission of the Tax Recovery Officer and under Sub-rule (2) of Rule 16, if any attachment has been made under this schedule any private transfer or delivery of the property or of any interest therein contrary to such attachment is void against all claims enforceable under the attachment.18. In this case notice under Rule 2 was issued to BPIL on 11/2/2003. The said immovable property was attached under Rule 48 of the said schedule on 17/6/03 vide ITCP-16. Form No.ITCP 16 annexed to the affidavit of the Tax Recovery Officer states that the defaulter BPIL had failed to pay a sum of Rs.20,46,813/- payable under certificate dated 11/2/2003 and hence the said property is attached. The sale in favour of the petitioners has taken place on 9/12/2004 and the sale certificate is issued on 14/1/05. Therefore, as per Rule 2 read with Rule 16 of the said Schedule the said sale is void.19. We are not impressed by Mr. Tulzapurkars contention that because the sale was at the instance of the 2nd respondent under the orders of the DRT, it will not be covered by Rule 16. The defaulter could not have sold the property after receipt of notice under Rule 2 and after attachment of the property by the Income Tax Department. Therefore, in the circumstances of the case even respondent 2 could not have ordered the sale of the said property. It is not possible for us to set aside the attachment in this manner. Attachment levied by the Income-Tax Department cannot cease to operate because of subsequent sale. Dues of the Department must be paid. Attachment will continue to operate so long as the dues are not paid and the fact that property has changed hands will, in our opinion, make no difference.20. In our opinion, the reliance placed by Mr. Tulzapurkar on the judgment of this court in P. Kumars case (supra) is misplaced. In that case the petitioners therein had entered into an agreement of sale dated 18/8/1984 with one company. Possession was handed over to the petitioners. The petitioners and the company jointly filed Form No.37EE before the Competent Authority under Section 269 AB(2) of the Income Tax Act. In March 1987, the Income Tax Department attempted to attach the said property. Petitioners wrote a letter to the Income Tax Department stating that they had purchased the premises without notice of any proceedings against the said company in respect of assessment year 1983-84. The company had filed return for the assessment year 1983-84 on 27/2/84, though the date of completion of the assessment was not indicated.21. On facts before it a learned Single Judge of this court held that the petitioner and the said company had jointly filed Form No.37EE in the office of the Competent Authority. The assessment of the said company was not completed until March, 1986 and hence no demand could, thus be pending against the said company at the relevant time. This court observed that the petitioners therein had filed the requisite forms and, therefore, it was for the department to raise objection against the purchase of the premises from the said company. This court observed that affidavit in reply was also not filed by the department. In the circumstances, this court quashed the notice of attachment.22. In this case, the Income Tax Department has filed affidavit. The petitioner has not chosen to make BPIL party. It is not even averred in the petition that no demand was pending against BPIL. Mrs. Majas, the Tax Recovery Officer of the Income Tax Department has stated in her affidavit that the Income Tax Department had initiated recovery proceeding against BPIL for realization of dues of more than Rs.20 lacs. She has annexed to her affidavit a table giving all particulars about the assessment years, demand to be recovered, date of service of notice and dates of payment. We are not in a position to record a finding that in the facts of this case, there was no pending demand, particularly when there is no specific challenge raised in the petition. In our opinion, the judgment of this court in P. Kumars case will have to be confined to its own facts.23. In the circumstances, we are of the opinion that there is no merit in this writ petition.
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17. It is clear, therefore, that after notice under Rule 2 is served on the defaulter the defaulter or his representative in interest cannot deal with the property belonging to him except with the permission of the Tax Recovery Officer and under(2) of Rule 16, if any attachment has been made under this schedule any private transfer or delivery of the property or of any interest therein contrary to such attachment is void against all claims enforceable under the attachment.18. In this case notice under Rule 2 was issued to BPIL on 11/2/2003. The said immovable property was attached under Rule 48 of the said schedule on 17/6/03 videForm No.ITCP 16 annexed to the affidavit of the Tax Recovery Officer states that the defaulter BPIL had failed to pay a sum of Rs.20,46,813/payable under certificate dated 11/2/2003 and hence the said property is attached. The sale in favour of the petitioners has taken place on 9/12/2004 and the sale certificate is issued on 14/1/05. Therefore, as per Rule 2 read with Rule 16 of the said Schedule the said sale is void.19. We are not impressed by Mr. Tulzapurkars contention that because the sale was at the instance of the 2nd respondent under the orders of the DRT, it will not be covered by Rule 16. The defaulter could not have sold the property after receipt of notice under Rule 2 and after attachment of the property by the Income Tax Department. Therefore, in the circumstances of the case even respondent 2 could not have ordered the sale of the said property. It is not possible for us to set aside the attachment in this manner. Attachment levied by theDepartment cannot cease to operate because of subsequent sale. Dues of the Department must be paid. Attachment will continue to operate so long as the dues are not paid and the fact that property has changed hands will, in our opinion, make no difference.20. In our opinion, the reliance placed by Mr. Tulzapurkar on the judgment of this court in P. Kumars case (supra) is misplaced. In that case the petitioners therein had entered into an agreement of sale dated 18/8/1984 with one company. Possession was handed over to the petitioners. The petitioners and the company jointly filed Form No.37EE before the Competent Authority under Section 269 AB(2) of the Income Tax Act. In March 1987, the Income Tax Department attempted to attach the said property. Petitioners wrote a letter to the Income Tax Department stating that they had purchased the premises without notice of any proceedings against the said company in respect of assessment yearThe company had filed return for the assessment yearon 27/2/84, though the date of completion of the assessment was not indicated.21. On facts before it a learned Single Judge of this court held that the petitioner and the said company had jointly filed Form No.37EE in the office of the Competent Authority. The assessment of the said company was not completed until March, 1986 and hence no demand could, thus be pending against the said company at the relevant time. This court observed that the petitioners therein had filed the requisite forms and, therefore, it was for the department to raise objection against the purchase of the premises from the said company. This court observed that affidavit in reply was also not filed by the department. In the circumstances, this court quashed the notice of attachment.22. In this case, the Income Tax Department has filed affidavit. The petitioner has not chosen to make BPIL party. It is not even averred in the petition that no demand was pending against BPIL. Mrs. Majas, the Tax Recovery Officer of the Income Tax Department has stated in her affidavit that the Income Tax Department had initiated recovery proceeding against BPIL for realization of dues of more than Rs.20 lacs. She has annexed to her affidavit a table giving all particulars about the assessment years, demand to be recovered, date of service of notice and dates of payment. We are not in a position to record a finding that in the facts of this case, there was no pending demand, particularly when there is no specific challenge raised in the petition. In our opinion, the judgment of this court in P. Kumars case will have to be confined to its own facts.23. In the circumstances, we are of the opinion that there is no merit in this writ petition.
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The New India Civil Erectors (P) Ltd Vs. Oil & Natural Gas Corpn | have awarded an amount of Rs. 49,91,327/-. The dispute between the parties is with respect to the method/mode of measuring the constructed area. The case of the respondent is that according to the tender conditions, as well as clause (10) of the aforesaid letter dated 5th March, 1984 (written by the appellant to the corporation), the area covered by balconies is liable to be excluded from the measurements. We may refer to clause (10) of the appellants own letter dated 5th March, 1984 which reads as follows : "Mode of measurement :- We have based our price on the total built-up of one floor [four flats] including stair-case and common corridor but excluding balconies only. Hence work should be measured on the built-up area, excluding balcony areas." The tender condition is to the same effect. 9. The above stipulation clearly says that total built-up area of a floor shall include stair case and common corridor but shall exclude balconies. It expressly provides that "work should be measured on the built-up area excluding balcony area". It is undisputed that in the plan of flats attached to the Tender notice, balconies are provided. Shri Nariman contended that the said plans were modified later and that the flats as finally constructed, did not have any balconies and, hence, no question of excluding the balconies area can arise. Shri Nariman could not, however, bring to our notice any agreed or sanctioned plan modifying the plan attached to the Tender notice. The appellant could not have constructed flats except in accordance with the plans attached to the Tender notice, unless of course there was a later mutually agreed modified plan - and there is none in this case. We cannot, therefore, entertain the contention at this stage that there are no balconies at all in the flats constructed and that, therefore, the aforesaid stipulation has no relevance. We must proceed on the assumption that the plans attached to the Tender notice are the agreed plans and that construction has been made according to them and that in the light of the agreed stipulation referred to above, the areas covered by balconies should be excluded. In this view of the matter we agree with the Division Bench that the arbitrators over-stepped their authority by including the area of the balconies in the measurement of the built-up area. It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account. We, therefore, affirm the decision of the Division Bench on this score [Claim No. 6]. 10. Claim No. 9 : The appellant claimed an amount of Rs. 32,21,099.89 p. under this head, against which the arbitrators have awarded a sum of Rs. 16,31,425/-. The above claim was made on account of escalation in the cost of construction during the period subsequent to the expiry of the original contract period. The appellants claim on this account was resisted by the respondent-corporation with reference to and on the basis of the stipulation in the corporations acceptance letter dated 10th January, 1985 which stated clearly that "the above price is firm and is not subject to any escalation under whatsoever ground till the completion of the work". The Division Bench has held, and in our opinion rightly, that in the face of the said express stipulation between the parties, the appellant could not have claimed any amount on account of escalation in the cost of construction carried on by him after the expiry of the original contract period. The aforesaid stipulation provides clearly that there shall be no escalation on any ground whatsoever and the said prohibition is effective till the completion of the work. The learned arbitrators, could not therefore have awarded any amount on the ground that the appellant must have incurred extra expense in carrying out the construction after the expiry of the original contract period. The aforesaid stipulation between the parties is binding upon them both and the arbitrators. We are of the opinion that the learned single Judge was not right in holding that the said prohibition is confined to the original contract period and does not operate thereafter. Merely because the time was made the essence of the contract and the work was contemplated to be completed within 15 months, it does not follow that the aforesaid stipulation was confined to the original contract period. This is not a case of the arbitrators construing the agreement. It is a clear case of the arbitrators acting contrary to the specific stipulation/condition contained in the agreement between the parties. We, therefore, affirm the decision of the Division Bench on this count as well [Claim No. 9.]11. So far as the position of law on the subject is concerned, there is hardly any dispute between the parties. It is sufficient to refer to the well considered decision of this Court in Sudarshan Trading Company v. Govt. of Kerala, AIR 1989 SC 890 , wherein it has been held :".......if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find that he exceeded his jurisdiction on proof of such excess.....Therefore, it appears to us that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it cannot, unless the agreement was incorporated or recited in the award." | 1[ds]6. The appellants case, however, was that though the Schedule to the Tender notice did contain the above stipulation, the appellant had, in its letter dated 5th March, 1984, which was in the nature of a counter-offer, clearly stipulated that "ordinary portland cement; Rs. 8.30 per metric tonne, [each 50 kg. bag]" will be supplied by the corporation "at site". The appellant had stipulated in the said letter that the terms set out by it therein "shall take precedence over....tenderare of the opinion that this appears to be a border-line case. It is possible to take either view. It must be remembered that in this case there is no formal contract and the terms of agreement have to be inferred from the Tender notice and the correspondence between the parties. Since the attempt of the Court should always be to support the award within the letter of law, we are inclined to uphold the award on this count [claim No. 4]. Accordingly, we reverse the judgment of the Division Bench to the above extent. The amount awarded by the arbitrators under this claim is affirmed.The above stipulation clearly says that total built-up area of a floor shall include stair case and common corridor but shall exclude balconies. It expressly provides that "work should be measured on the built-up area excluding balcony area". It is undisputed that in the plan of flats attached to the Tender notice, balconies are provided. Shri Nariman contended that the said plans were modified later and that the flats as finally constructed, did not have any balconies and, hence, no question of excluding the balconies area canNariman could not, however, bring to our notice any agreed or sanctioned plan modifying the plan attached to the Tender notice. The appellant could not have constructed flats except in accordance with the plans attached to the Tender notice, unless of course there was a later mutually agreed modified plan - and there is none in this case. We cannot, therefore, entertain the contention at this stage that there are no balconies at all in the flats constructed and that, therefore, the aforesaid stipulation has no relevance. We must proceed on the assumption that the plans attached to the Tender notice are the agreed plans and that construction has been made according to them and that in the light of the agreed stipulation referred to above, the areas covered by balconies should be excluded. In this view of the matter we agree with the Division Bench that the arbitrators over-stepped their authority by including the area of the balconies in the measurement of the built-up area. It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account. We, therefore, affirm the decision of the Division Bench on this score [Claim No.Division Bench has held, and in our opinion rightly, that in the face of the said express stipulation between the parties, the appellant could not have claimed any amount on account of escalation in the cost of construction carried on by him after the expiry of the original contract period. The aforesaid stipulation provides clearly that there shall be no escalation on any ground whatsoever and the said prohibition is effective till the completion of the work. The learned arbitrators, could not therefore have awarded any amount on the ground that the appellant must have incurred extra expense in carrying out the construction after the expiry of the original contract period. The aforesaid stipulation between the parties is binding upon them both and the arbitrators. We are of the opinion that the learned single Judge was not right in holding that the said prohibition is confined to the original contract period and does not operate thereafter. Merely because the time was made the essence of the contract and the work was contemplated to be completed within 15 months, it does not follow that the aforesaid stipulation was confined to the original contract period. This is not a case of the arbitrators construing the agreement. It is a clear case of the arbitrators acting contrary to the specific stipulation/condition contained in the agreement between the parties. We, therefore, affirm the decision of the Division Bench on this count as well [Claim No. 9.]11. So far as the position of law on the subject is concerned, there is hardly any dispute between the parties. It is sufficient to refer to the well considered decision of this Court in Sudarshan Trading Company v. Govt. of Kerala, AIR 1989 SC 890 , wherein it has been held :".......if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find that he exceeded his jurisdiction on proof of such excess.....Therefore, it appears to us that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it cannot, unless the agreement was incorporated or recited in the award." | 1 | 2,425 | 1,045 | ### Instruction:
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have awarded an amount of Rs. 49,91,327/-. The dispute between the parties is with respect to the method/mode of measuring the constructed area. The case of the respondent is that according to the tender conditions, as well as clause (10) of the aforesaid letter dated 5th March, 1984 (written by the appellant to the corporation), the area covered by balconies is liable to be excluded from the measurements. We may refer to clause (10) of the appellants own letter dated 5th March, 1984 which reads as follows : "Mode of measurement :- We have based our price on the total built-up of one floor [four flats] including stair-case and common corridor but excluding balconies only. Hence work should be measured on the built-up area, excluding balcony areas." The tender condition is to the same effect. 9. The above stipulation clearly says that total built-up area of a floor shall include stair case and common corridor but shall exclude balconies. It expressly provides that "work should be measured on the built-up area excluding balcony area". It is undisputed that in the plan of flats attached to the Tender notice, balconies are provided. Shri Nariman contended that the said plans were modified later and that the flats as finally constructed, did not have any balconies and, hence, no question of excluding the balconies area can arise. Shri Nariman could not, however, bring to our notice any agreed or sanctioned plan modifying the plan attached to the Tender notice. The appellant could not have constructed flats except in accordance with the plans attached to the Tender notice, unless of course there was a later mutually agreed modified plan - and there is none in this case. We cannot, therefore, entertain the contention at this stage that there are no balconies at all in the flats constructed and that, therefore, the aforesaid stipulation has no relevance. We must proceed on the assumption that the plans attached to the Tender notice are the agreed plans and that construction has been made according to them and that in the light of the agreed stipulation referred to above, the areas covered by balconies should be excluded. In this view of the matter we agree with the Division Bench that the arbitrators over-stepped their authority by including the area of the balconies in the measurement of the built-up area. It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account. We, therefore, affirm the decision of the Division Bench on this score [Claim No. 6]. 10. Claim No. 9 : The appellant claimed an amount of Rs. 32,21,099.89 p. under this head, against which the arbitrators have awarded a sum of Rs. 16,31,425/-. The above claim was made on account of escalation in the cost of construction during the period subsequent to the expiry of the original contract period. The appellants claim on this account was resisted by the respondent-corporation with reference to and on the basis of the stipulation in the corporations acceptance letter dated 10th January, 1985 which stated clearly that "the above price is firm and is not subject to any escalation under whatsoever ground till the completion of the work". The Division Bench has held, and in our opinion rightly, that in the face of the said express stipulation between the parties, the appellant could not have claimed any amount on account of escalation in the cost of construction carried on by him after the expiry of the original contract period. The aforesaid stipulation provides clearly that there shall be no escalation on any ground whatsoever and the said prohibition is effective till the completion of the work. The learned arbitrators, could not therefore have awarded any amount on the ground that the appellant must have incurred extra expense in carrying out the construction after the expiry of the original contract period. The aforesaid stipulation between the parties is binding upon them both and the arbitrators. We are of the opinion that the learned single Judge was not right in holding that the said prohibition is confined to the original contract period and does not operate thereafter. Merely because the time was made the essence of the contract and the work was contemplated to be completed within 15 months, it does not follow that the aforesaid stipulation was confined to the original contract period. This is not a case of the arbitrators construing the agreement. It is a clear case of the arbitrators acting contrary to the specific stipulation/condition contained in the agreement between the parties. We, therefore, affirm the decision of the Division Bench on this count as well [Claim No. 9.]11. So far as the position of law on the subject is concerned, there is hardly any dispute between the parties. It is sufficient to refer to the well considered decision of this Court in Sudarshan Trading Company v. Govt. of Kerala, AIR 1989 SC 890 , wherein it has been held :".......if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find that he exceeded his jurisdiction on proof of such excess.....Therefore, it appears to us that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it cannot, unless the agreement was incorporated or recited in the award."
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### Explanation:
6. The appellants case, however, was that though the Schedule to the Tender notice did contain the above stipulation, the appellant had, in its letter dated 5th March, 1984, which was in the nature of a counter-offer, clearly stipulated that "ordinary portland cement; Rs. 8.30 per metric tonne, [each 50 kg. bag]" will be supplied by the corporation "at site". The appellant had stipulated in the said letter that the terms set out by it therein "shall take precedence over....tenderare of the opinion that this appears to be a border-line case. It is possible to take either view. It must be remembered that in this case there is no formal contract and the terms of agreement have to be inferred from the Tender notice and the correspondence between the parties. Since the attempt of the Court should always be to support the award within the letter of law, we are inclined to uphold the award on this count [claim No. 4]. Accordingly, we reverse the judgment of the Division Bench to the above extent. The amount awarded by the arbitrators under this claim is affirmed.The above stipulation clearly says that total built-up area of a floor shall include stair case and common corridor but shall exclude balconies. It expressly provides that "work should be measured on the built-up area excluding balcony area". It is undisputed that in the plan of flats attached to the Tender notice, balconies are provided. Shri Nariman contended that the said plans were modified later and that the flats as finally constructed, did not have any balconies and, hence, no question of excluding the balconies area canNariman could not, however, bring to our notice any agreed or sanctioned plan modifying the plan attached to the Tender notice. The appellant could not have constructed flats except in accordance with the plans attached to the Tender notice, unless of course there was a later mutually agreed modified plan - and there is none in this case. We cannot, therefore, entertain the contention at this stage that there are no balconies at all in the flats constructed and that, therefore, the aforesaid stipulation has no relevance. We must proceed on the assumption that the plans attached to the Tender notice are the agreed plans and that construction has been made according to them and that in the light of the agreed stipulation referred to above, the areas covered by balconies should be excluded. In this view of the matter we agree with the Division Bench that the arbitrators over-stepped their authority by including the area of the balconies in the measurement of the built-up area. It is axiomatic that the arbitrator being a creature of the agreement, must operate within the four corners of the agreement and cannot travel beyond it. More particularly, he cannot award any amount which is ruled out or prohibited by the terms of the agreement. In this case, the agreement between the parties clearly says that in measuring the built-up area, the balcony areas should be excluded. The arbitrators could not have acted contrary to the said stipulation and awarded any amount to the appellant on that account. We, therefore, affirm the decision of the Division Bench on this score [Claim No.Division Bench has held, and in our opinion rightly, that in the face of the said express stipulation between the parties, the appellant could not have claimed any amount on account of escalation in the cost of construction carried on by him after the expiry of the original contract period. The aforesaid stipulation provides clearly that there shall be no escalation on any ground whatsoever and the said prohibition is effective till the completion of the work. The learned arbitrators, could not therefore have awarded any amount on the ground that the appellant must have incurred extra expense in carrying out the construction after the expiry of the original contract period. The aforesaid stipulation between the parties is binding upon them both and the arbitrators. We are of the opinion that the learned single Judge was not right in holding that the said prohibition is confined to the original contract period and does not operate thereafter. Merely because the time was made the essence of the contract and the work was contemplated to be completed within 15 months, it does not follow that the aforesaid stipulation was confined to the original contract period. This is not a case of the arbitrators construing the agreement. It is a clear case of the arbitrators acting contrary to the specific stipulation/condition contained in the agreement between the parties. We, therefore, affirm the decision of the Division Bench on this count as well [Claim No. 9.]11. So far as the position of law on the subject is concerned, there is hardly any dispute between the parties. It is sufficient to refer to the well considered decision of this Court in Sudarshan Trading Company v. Govt. of Kerala, AIR 1989 SC 890 , wherein it has been held :".......if the parties set limits to action by the arbitrator, then the arbitrator had to follow the limits set for him and the Court can find that he exceeded his jurisdiction on proof of such excess.....Therefore, it appears to us that there are two different and distinct grounds involved in many of the cases. One is the error apparent on the face of the award, and the other is that the arbitrator exceeded his jurisdiction. In the latter case, the Courts can look into the arbitration agreement but in the former, it cannot, unless the agreement was incorporated or recited in the award."
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State Of Karnataka Vs. Arun Kumar Agrawal | for period of exclusivity, transference of existing permits and information, ability to induct partners and confidentiality. The next Memorandum of Understanding provided for promoters to undertake feasibility study, develop power sales structure and tariff design, all at considerable cost. The selection of Cogentrix was after examining the financial and executing capability as per the Central Electricity Authority guidelines. The techno-economic clearance was granted by the Central Electricity Authority after eight months of review. Foreign Investment Promotion Board granted permission for foreign investment on May 11, 1993 which also assessed the technical and financial capability of the promoters. The financial statement of the Cogentrix indicates that it is a US $944 million dollar company and not a fly by night company as alleged. The shifting of site from Bangalore to Managalore has been considered earlier in the decision of the High Court of Karnataka, adverted to earlier. There was a change in the set up 1000 MW at Mangalore instead of 2 x 250 MW at Bangalore and 2 x 250 at Mangalore. Utilisation of transmission lines by the Cogentrix cannot be a suspicious circumstance between it proposed 400 KV transmission line interconnecting Mangalore, Bangalore and Mysore has not been conceived exclusively for the Cogentrix but is for other projects totalling 2500 MW planned for the region. The increase in the electricity rates is subject to the Electricity Supply Act and clearance being given by different Departments of the Union and State Ministries. Therefore, that again cannot be a circumstance which could give rise to any suspicion. We have adverted in detail to the balance sheet showing incurring of expenses in India. Thus none of the thirteen circumstances noticed by the High Court can be characterised as giving rise to any suspicion, much less a basis for investigation by a criminal investigating agency.16. It is difficult to visualise that when an agreement had been entered into with a foreign company it has been done under suspicious circumstances particularly when it had stood the test of scrutiny under three different Governments headed by at least three different Chief Ministers and when the examination of the project and its approval was considered by different statutory and other agencies of the Government of India. Could it still be said that there had been kickbacks to any one of them or all of them in the matter of entering into a Memorandum of Understanding or in continuation of the same ? The law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned counsel appearing in the case. Naturally when stakes are high one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage. Even that circumstance is taken to be against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forth coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.17. Reference has been made to certain cases including Vineet Narain v. Union of India, 1996(2) SCC 199, wherein this Court had monitored the police investigations by passing series of orders. But that was a case where the investigating agency, although had gathered evidence pursuant to a probe started long back, was not proceeding with investigation since the matter involved persons in very high positions in Government and in public life. The lethargy of CBI was inexplicable and hence this Court monitored the investigation. The principle of this decision is not at all applicable to the facts of the present case. Nor are we impressed with the arguments that this Court should not in exercise of powers conferred under Article 136 of the Constitution interfere with the order under appeal inasmuch as an order as to wrongful investigation will certainly put a person to jeopardy when there is no justification to do so.18. In the result, we think that the order made by the High Court has got to be set aside, but this order will not preclude the parties concerned on finding appropriate material to place the same before any authorised agency to register the case and investigate the matter and, in the event there is any inaction on their part, may seek relief in an appropriate Court. | 1[ds]10. In this case, we are constrained to observe that the High Court has lost sight of certain broad features of the case. The necessity for establishing thermal power station which is, in detail, considered by the High Court of Karnataka in Java Jaguibi Samithi v. Union of India, 1991(2) Kar. L.J. 524. The circumstance in which the Government of Karnataka took decision to invite foreign investors, the manner in which it was done, was also subject of consideration in India Council for Enviro-Legal and another v. Union of India and others, ILR 1997 KAR 2956, and the High Court rejected objections thereto which was not interfered with in SLP by this Court and thus that order has become final. The circumstance in which the National Thermal Power Corporation which wanted to establish a power station with the collaboration of USSR was dropped on the dissolution of the Soviet Union is not in doubt. The purposal to give the appellants the contract to establish a power station near Mangalore was taken up for consideration when Mr. Bangarappa was the Chief Minister and all decisions were taken not only by him but by the Cabinet concerned after being examined at various levels by the officers of the government. Thereafter on November 19, 1992 a new government was installed in the State of Karnataka with Mr. Veerappa Moily as the Chief Minister and the matter was reviewed by a Committee headed by Mr. J.C. Lynn, Chief Secretary to the Government of Karnataka. In that review meeting the Additional Chief Secretary, Finance Commissioner, Secretary to the Ministry of Energy, Energy Secretary and Chairman, Karnataka Electricity Board had attended and those deliberations were held on January 18, 1993, January 27, 1993, February 2, 1993 and February 2, 1993. Various suggestions made by M/s Cogentrix were presented to the Foreign Investment Promotion Board formed under the auspices of the Government of India. Various aspects of the matter were examined by the Government of India and it expressed the view that in the event of cancellation of Memorandum of Understanding there are likely repercussions that may arise to which we have referred to earlier. Several clearances were given by different agencies of the Government of India from stage to stage. And, inthe meanwhile, the government was again changed in the State of Karnataka firstly with Mr. H.D. Deve Gowda as the Chief Minister, later headed by Mr. J.H. Patel and once again the project passed through the scrutiny of the new Governments.11. The genesis of the theory put forth on behalf of the writ petitioners is the balance sheet showing incurring of expenditure in India. In the balance sheet of China Light and Power Company and in Annual Report it is indicated as follows :"Investment in a power project in India : reached an agreement in July with Cogentrix Energy of US to jointly invest in a 1000 MW coal fired power station project to be built at Mangalore in the State of Karnataka"TheWaterhouse report states that 71.8 million HK Dollars out of a total of 191 million HK dollars shows as provision in the accounts for September 30, 1995 and September 30, 1996 is in respect of the Mangalore Project and they relate to (i) cost of acquisition paid to Cogentrix; (ii) reimbursement of cost incurred by Cogentrix; (iii) payment to third parties for services; and (iv) staff remuneration charged to the project. As to the allegation that money might have been paid in a foreign country, no foundation for the claim is laid in the petition. The China Light and Power Company claims that neither the company nor any group company maintained a bank account in British Virgin Island at any time and accounting have always been maintained in Hong Kong. 1359 British Virgin Island Companies, including the China Light and Power (International) Ltd. having place of business in Hong Kong are registered with the Registrar of Companies in 1997. The allegation of bribery made against Mr. Deve Gowda is based on a letter written by Mr. George Fernandes and the basis of this letter is again not clear. Thus the foundation laid for the whole case arises out of suspicion alone on the strength of dubious and amorphous material. On such material, no case can be registered, much less, an investigation can be done. We would not have hazarded to consider that material placed before us but in order to allay the facts expressed by the parties concerned, necessarily we had to undertake that exercise.12. One of the questions raised by the writ petitioner in the High Court is regarding financial and technical capability of the sponsor of the project. The Government of India while granting permission has considered this aspect at different stages as is clear from letters dated May 11, 1993, September 1, 1993, April 15, 1994, March 23, 1995, June 3, 1996 and January 3, 1997. The last of which indicated the permission of the Government of India to China Light to acquire equity holding in the project and stipulating Cogentrix as an equity holder. The original approval was to set up, own and operate pulverized coal fired power station of capacity of approximately 1000 MW to be implemented in three power blocks of approximately 330 MWs each at Mangalore which was modified by letter dated January 3, 1997. None of the approvals granted by the Government of India and the amendments made to the approvals from time to time was in challenge before us. Thus the entry, the financial capability of Cogentrix and CLP; withdrawal of General Electricity and replacement of CLP; the induction of foreign investment for the project through Mangalore Power Company; right to use imported coal; the capital cost of the project and the clearance for the implementation for 1000 MW project at Mangalore are all matters governed by specific approvals given by the Government of India. In these proceedings, therefore, such clearance cannot be attacked collaterally which have been the subject matters of examination and approval at the highest level by the Ministry of Industry (Foreign Investment Promotion Board) and the Ministry of Power of the Government of India.13. The financial structure of the project and project costs including tariff and the price of electricity have been subject to modifications and are conditional upon the approval by the Central Government, Ministry off Power as well as by the Central Electricity Authority. The final draft of the power project after review by the Ministry of Finance, Government of India was forwarded to the Government of Karnataka on September 29, 1997 for delivery and execution by the Karnataka Electricity Board. Others matters relating to power project including heat rate, capital cost, revenue expenses, fuel procurement and financial capability of the sponsor were considered at the time of examining the proposals of the scheme under Section 29 of the Electricity Supply Act and Detailed Project Report which had been submitted to the Central Electricity Authority for approval and for techno-economic clearance and detailed project report gives breakdown of the various project costs including sponsors development expenses. Detailed project reports prepared by the Cogentrix is in conformity with the guidelines of the Central Electricity Authority. General breakdown of the project costs and balance sheet were subject matters of consideration. The official guidelines require the development expenses to be shown separately and such expenses, therefore, could, by no stretch of imagination, be considered as bribes or greased money.14. The detailed project report was advertised and 838 representations had been received and the same were forwarded to the State Government for onward transmission to the Central Electricity Authority. The Central Electricity Authority has examined these objections and comments offered by the CLP or the Cogentrix before giving its approval. Thus the techno-economic clearance given to the project cannot be examined by Courts to arrive at whether they are technically feasible or not or whether in granting the same strange things have happened giving rise to suspicion that something has been done by way of undue favour.15. The reference of the High Court to the liberalisation policy, reforms approved by amendment of Electricity Supply Act to enable induction of private sector to participate in power generation, to provide for level playing field for domestic and foreign companies in terms of the Government of India is a matter of policy and, therefore, the idea of foreign collaboration by itself cannot be a suspicious circumstance. The Memorandum of Understanding arose as a result of Power Seminar held on June 16, 1992 enabling the introduction of different parties. Karnataka Cabinet met on July 15, 1995 and proposed signing of various Memorandum of Understandings with various companies and the Chief Minister visited different places. The Memorandum of Understanding with Cogentrix provides for period of exclusivity, transference of existing permits and information, ability to induct partners and confidentiality. The next Memorandum of Understanding provided for promoters to undertake feasibility study, develop power sales structure and tariff design, all at considerable cost. The selection of Cogentrix was after examining the financial and executing capability as per the Central Electricity Authority guidelines. The techno-economic clearance was granted by the Central Electricity Authority after eight months of review. Foreign Investment Promotion Board granted permission for foreign investment on May 11, 1993 which also assessed the technical and financial capability of the promoters. The financial statement of the Cogentrix indicates that it is a US $944 million dollar company and not a fly by night company as alleged. The shifting of site from Bangalore to Managalore has been considered earlier in the decision of the High Court of Karnataka, adverted to earlier. There was a change in the set up 1000 MW at Mangalore instead of 2 x 250 MW at Bangalore and 2 x 250 at Mangalore. Utilisation of transmission lines by the Cogentrix cannot be a suspicious circumstance between it proposed 400 KV transmission line interconnecting Mangalore, Bangalore and Mysore has not been conceived exclusively for the Cogentrix but is for other projects totalling 2500 MW planned for the region. The increase in the electricity rates is subject to the Electricity Supply Act and clearance being given by different Departments of the Union and State Ministries. Therefore, that again cannot be a circumstance which could give rise to any suspicion. We have adverted in detail to the balance sheet showing incurring of expenses in India. Thus none of the thirteen circumstances noticed by the High Court can be characterised as giving rise to any suspicion, much less a basis for investigation by a criminal investigating agency.16. It is difficult to visualise that when an agreement had been entered into with a foreign company it has been done under suspicious circumstances particularly when it had stood the test of scrutiny under three different Governments headed by at least three different Chief Ministers and when the examination of the project and its approval was considered by different statutory and other agencies of the Government of India. Could it still be said that there had been kickbacks to any one of them or all of them in the matter of entering into a Memorandum of Understanding or in continuation of the same ? The law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned counsel appearing in the case. Naturally when stakes are high one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage. Even that circumstance is taken to be against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forth coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.17. Reference has been made to certain cases including Vineet Narain v. Union of India, 1996(2) SCC 199, wherein this Court had monitored the police investigations by passing series of orders. But that was a case where the investigating agency, although had gathered evidence pursuant to a probe started long back, was not proceeding with investigation since the matter involved persons in very high positions in Government and in public life. The lethargy of CBI was inexplicable and hence this Court monitored the investigation. The principle of this decision is not at all applicable to the facts of the present case. Nor are we impressed with the arguments that this Court should not in exercise of powers conferred under Article 136 of the Constitution interfere with the order under appeal inasmuch as an order as to wrongful investigation will certainly put a person to jeopardy when there is no justification to do so.18. In the result, we think that the order made by the High Court has got to be set aside, but this order will not preclude the parties concerned on finding appropriate material to place the same before any authorised agency to register the case and investigate the matter and, in the event there is any inaction on their part, may seek relief in an appropriate Court. | 1 | 5,853 | 2,665 | ### 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:
for period of exclusivity, transference of existing permits and information, ability to induct partners and confidentiality. The next Memorandum of Understanding provided for promoters to undertake feasibility study, develop power sales structure and tariff design, all at considerable cost. The selection of Cogentrix was after examining the financial and executing capability as per the Central Electricity Authority guidelines. The techno-economic clearance was granted by the Central Electricity Authority after eight months of review. Foreign Investment Promotion Board granted permission for foreign investment on May 11, 1993 which also assessed the technical and financial capability of the promoters. The financial statement of the Cogentrix indicates that it is a US $944 million dollar company and not a fly by night company as alleged. The shifting of site from Bangalore to Managalore has been considered earlier in the decision of the High Court of Karnataka, adverted to earlier. There was a change in the set up 1000 MW at Mangalore instead of 2 x 250 MW at Bangalore and 2 x 250 at Mangalore. Utilisation of transmission lines by the Cogentrix cannot be a suspicious circumstance between it proposed 400 KV transmission line interconnecting Mangalore, Bangalore and Mysore has not been conceived exclusively for the Cogentrix but is for other projects totalling 2500 MW planned for the region. The increase in the electricity rates is subject to the Electricity Supply Act and clearance being given by different Departments of the Union and State Ministries. Therefore, that again cannot be a circumstance which could give rise to any suspicion. We have adverted in detail to the balance sheet showing incurring of expenses in India. Thus none of the thirteen circumstances noticed by the High Court can be characterised as giving rise to any suspicion, much less a basis for investigation by a criminal investigating agency.16. It is difficult to visualise that when an agreement had been entered into with a foreign company it has been done under suspicious circumstances particularly when it had stood the test of scrutiny under three different Governments headed by at least three different Chief Ministers and when the examination of the project and its approval was considered by different statutory and other agencies of the Government of India. Could it still be said that there had been kickbacks to any one of them or all of them in the matter of entering into a Memorandum of Understanding or in continuation of the same ? The law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned counsel appearing in the case. Naturally when stakes are high one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage. Even that circumstance is taken to be against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forth coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.17. Reference has been made to certain cases including Vineet Narain v. Union of India, 1996(2) SCC 199, wherein this Court had monitored the police investigations by passing series of orders. But that was a case where the investigating agency, although had gathered evidence pursuant to a probe started long back, was not proceeding with investigation since the matter involved persons in very high positions in Government and in public life. The lethargy of CBI was inexplicable and hence this Court monitored the investigation. The principle of this decision is not at all applicable to the facts of the present case. Nor are we impressed with the arguments that this Court should not in exercise of powers conferred under Article 136 of the Constitution interfere with the order under appeal inasmuch as an order as to wrongful investigation will certainly put a person to jeopardy when there is no justification to do so.18. In the result, we think that the order made by the High Court has got to be set aside, but this order will not preclude the parties concerned on finding appropriate material to place the same before any authorised agency to register the case and investigate the matter and, in the event there is any inaction on their part, may seek relief in an appropriate Court.
### Response:
1
### Explanation:
for period of exclusivity, transference of existing permits and information, ability to induct partners and confidentiality. The next Memorandum of Understanding provided for promoters to undertake feasibility study, develop power sales structure and tariff design, all at considerable cost. The selection of Cogentrix was after examining the financial and executing capability as per the Central Electricity Authority guidelines. The techno-economic clearance was granted by the Central Electricity Authority after eight months of review. Foreign Investment Promotion Board granted permission for foreign investment on May 11, 1993 which also assessed the technical and financial capability of the promoters. The financial statement of the Cogentrix indicates that it is a US $944 million dollar company and not a fly by night company as alleged. The shifting of site from Bangalore to Managalore has been considered earlier in the decision of the High Court of Karnataka, adverted to earlier. There was a change in the set up 1000 MW at Mangalore instead of 2 x 250 MW at Bangalore and 2 x 250 at Mangalore. Utilisation of transmission lines by the Cogentrix cannot be a suspicious circumstance between it proposed 400 KV transmission line interconnecting Mangalore, Bangalore and Mysore has not been conceived exclusively for the Cogentrix but is for other projects totalling 2500 MW planned for the region. The increase in the electricity rates is subject to the Electricity Supply Act and clearance being given by different Departments of the Union and State Ministries. Therefore, that again cannot be a circumstance which could give rise to any suspicion. We have adverted in detail to the balance sheet showing incurring of expenses in India. Thus none of the thirteen circumstances noticed by the High Court can be characterised as giving rise to any suspicion, much less a basis for investigation by a criminal investigating agency.16. It is difficult to visualise that when an agreement had been entered into with a foreign company it has been done under suspicious circumstances particularly when it had stood the test of scrutiny under three different Governments headed by at least three different Chief Ministers and when the examination of the project and its approval was considered by different statutory and other agencies of the Government of India. Could it still be said that there had been kickbacks to any one of them or all of them in the matter of entering into a Memorandum of Understanding or in continuation of the same ? The law, in fact, is otherwise. The acts of persons will not be subject of criminal investigation unless a crime is reported to have been committed or reasonable suspicion thereto arises. On mere conjecture or surmise as a flight of fancy that some crime might have been committed, somewhere, by somebody but the crime is not known, the persons involved in it or the place of crime unknown, cannot be termed to be reasonable basis at all for starting a criminal investigation. However, condemnable be the nature or extent of corruption in the country, not all acts could be said to fall in that category. The attempt made by the High Court in this case appears to us to be in the nature of blind shot fired in the dark without even knowing whether there is a prey at all. That may create sound and fury but not result in hunting down the prey. The High Court has looked at different circumstances in the case with a jaundiced eye, particularly when we look at the comments made by it in relation to the amount of paper used and standing of the learned counsel appearing in the case. Naturally when stakes are high one would not like to take a risk in allowing a matter to go by default. The persons concerned will take all precautions by putting forth every point in their favour and to be represented by the best of counsel they can engage. Even that circumstance is taken to be against the parties concerned. We think, the High Court has gone too far. We would not have made this comment at all had the High Court given due weight to the rival submissions made by the parties. The High Court has not at all analysed the contentions put forth by either party. Hardly any reasons are forth coming in the order. What is stated by the writ petitioners and the respondents are summarised. When the High Court steers itself clear of expressing any opinion one way or the other even as to whether a prima facie case exists or not and whether there is reasonable suspicion of any crime having been committed, it is difficult to accept the view taken by the High Court.17. Reference has been made to certain cases including Vineet Narain v. Union of India, 1996(2) SCC 199, wherein this Court had monitored the police investigations by passing series of orders. But that was a case where the investigating agency, although had gathered evidence pursuant to a probe started long back, was not proceeding with investigation since the matter involved persons in very high positions in Government and in public life. The lethargy of CBI was inexplicable and hence this Court monitored the investigation. The principle of this decision is not at all applicable to the facts of the present case. Nor are we impressed with the arguments that this Court should not in exercise of powers conferred under Article 136 of the Constitution interfere with the order under appeal inasmuch as an order as to wrongful investigation will certainly put a person to jeopardy when there is no justification to do so.18. In the result, we think that the order made by the High Court has got to be set aside, but this order will not preclude the parties concerned on finding appropriate material to place the same before any authorised agency to register the case and investigate the matter and, in the event there is any inaction on their part, may seek relief in an appropriate Court.
|
Indu Nissan Oxo Chemicals Ind.Ltd Vs. Union Of India | Oil Corporation (in short IOC).8. Learned counsel for the respondents on the other hand has submitted that there is no prima facie case and even if it is conceded for the sake of arguments that there is financial hardship, that cannot be a ground to dispense with pre deposit and in any event the balance of convenience is not in favour of the appellant. 9. We shall deal with first the issue relating to the question of stay/dispensation of pre deposit in respect of sick industry. In Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai (2003 (155) ELT 13 (S.C.), this Court had clearly observed as follows: "Mr. Rana Mukherjee, the learned counsel for the appellants submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act." 10. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially.11. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653 ), M/s. Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 SC 61 ) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330 ).12. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given.13. Section 129-E of the Act reads as follows: "129E. DEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied.Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 14. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view.15. As noted above there are two important expressions in Section 129-E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923 ) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.16. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.17. The above position has been highlighted in M/s Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006 (12) SCALE 303 ). Though the said case related to dispute under the Customs Excise Act, 1944 (in short the Excise Act) the parameters are the same. | 1[ds]9. We shall deal with first the issue relating to the question of stay/dispensation of pre deposit in respect of sick industry. In Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai (2003 (155) ELT 13 (S.C.), this Court had clearly observed asRana Mukherjee, the learned counsel for the appellants submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act.Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially.11. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653 ), M/s. Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 SC 61 ) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330 ).12. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given.13. Section 129-E of the Act reads asDEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied.Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view.15. As noted above there are two important expressions in Section 129-E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923 ) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.16. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.17. The above position has been highlighted in M/s Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006 (12) SCALE 303 ). Though the said case related to dispute under the Customs Excise Act, 1944 (in short the Excise Act) the parameters are the same. | 1 | 2,128 | 1,042 | ### Instruction:
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Oil Corporation (in short IOC).8. Learned counsel for the respondents on the other hand has submitted that there is no prima facie case and even if it is conceded for the sake of arguments that there is financial hardship, that cannot be a ground to dispense with pre deposit and in any event the balance of convenience is not in favour of the appellant. 9. We shall deal with first the issue relating to the question of stay/dispensation of pre deposit in respect of sick industry. In Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai (2003 (155) ELT 13 (S.C.), this Court had clearly observed as follows: "Mr. Rana Mukherjee, the learned counsel for the appellants submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act." 10. Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially.11. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653 ), M/s. Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 SC 61 ) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330 ).12. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given.13. Section 129-E of the Act reads as follows: "129E. DEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied.Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue." 14. Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view.15. As noted above there are two important expressions in Section 129-E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923 ) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.16. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.17. The above position has been highlighted in M/s Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006 (12) SCALE 303 ). Though the said case related to dispute under the Customs Excise Act, 1944 (in short the Excise Act) the parameters are the same.
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9. We shall deal with first the issue relating to the question of stay/dispensation of pre deposit in respect of sick industry. In Metal Box India Ltd. v. Commissioner of Central Excise, Mumbai (2003 (155) ELT 13 (S.C.), this Court had clearly observed asRana Mukherjee, the learned counsel for the appellants submits that in view of Section 22 of the Sick Industrial Companies (Special Provisions) Act, 1985 (for short the Sick Industries Act), the appellant need not deposit the amount, as ordered by the Tribunal, as protection is available to the appellant under the said provision. We are afraid, we cannot accept the contention of the learned counsel for reasons more than one. First, this aspect was not the subject matter of the order under challenge and, secondly, Section 22 of the Sick Industries Act provides relief in regard to the proceedings which relate to (a) winding up of the industrial company; (b) execution distress or the like against any of the properties of the industrial company; (c) the appointment of a receiver in respect thereof, and (d) proceeding in regard to suit for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company. Payment of pre-deposit covered under Section 35F of the Central Excise Tax Act, 1944 does not fall under any of the above-mentioned categories in Section 22 of the Sick Industries Act.Principles relating to grant of stay pending disposal of the matters before the concerned forums have been considered in several cases. It is to be noted that in such matters though discretion is available, the same has to be exercised judicially.11. The applicable principles have been set out succinctly in Silliguri Municipality and Ors. v. Amalendu Das and Ors. (AIR 1984 SC 653 ), M/s. Samarias Trading Co. Pvt. Ltd. v. S. Samuel and Ors. (AIR 1985 SC 61 ) and Assistant Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330 ).12. It is true that on merely establishing a prima facie case, interim order of protection should not be passed. But if on a cursory glance it appears that the demand raised has no leg to stand, it would be undesirable to require the assessee to pay full or substantive part of the demand. Petitions for stay should not be disposed of in a routine matter unmindful of the consequences flowing from the order requiring the assessee to deposit full or part of the demand. There can be no rule of universal application in such matters and the order has to be passed keeping in view the factual scenario involved. Merely because this Court has indicated the principles that does not give a license to the forum/authority to pass an order which cannot be sustained on the touchstone of fairness, legality and public interest. Where denial of interim relief may lead to public mischief, grave irreparable private injury or shake a citizens faith in the impartiality of public administration, interim relief can be given.13. Section 129-E of the Act reads asDEPOSIT, PENDING APPEAL, OF DUTY AND INTEREST DEMANDED OR PENALTY LEVIED. - Where in any appeal under this Chapter, the decision or order appealed against relates to any duty and interest demanded in respect of goods which are not under the control of the customs authorities or any penalty levied under this Act, the person desirous of appealing against such decision or order shall, pending the appeal, deposit with the proper officer the duty and interest demanded or the penalty levied.Provided that where in any particular case, the Commissioner (Appeals) or the Appellate Tribunal is of opinion that the deposit of duty and interest demanded or penalty levied would cause undue hardship to such person, the Commissioner (Appeals) or, as the case may be, the Appellate Tribunal may dispense with such deposit subject to such conditions as he or it may deem fit to impose so as to safeguard the interests of revenue.Two significant expressions used in the provisions are "undue hardship to such person" and "safeguard the interests of revenue". Therefore, while dealing with the application twin requirements of considerations i.e. consideration of undue hardship aspect and imposition of conditions to safeguard the interest of Revenue have to be kept in view.15. As noted above there are two important expressions in Section 129-E. One is undue hardship. This is a matter within the special knowledge of the applicant for waiver and has to be established by him. A mere assertion about undue hardship would not be sufficient. It was noted by this Court in S. Vasudeva v. State of Karnataka and Ors. (AIR 1994 SC 923 ) that under Indian conditions expression "Undue hardship" is normally related to economic hardship. "Undue" which means something which is not merited by the conduct of the claimant, or is very much disproportionate to it. Undue hardship is caused when the hardship is not warranted by the circumstances.16. For a hardship to be undue it must be shown that the particular burden to have to observe or perform the requirement is out of proportion to the nature of the requirement itself, and the benefit which the applicant would derive from compliance with it.17. The above position has been highlighted in M/s Benara Valves Ltd. and Ors. v. Commissioner of Central Excise and Anr. (2006 (12) SCALE 303 ). Though the said case related to dispute under the Customs Excise Act, 1944 (in short the Excise Act) the parameters are the same.
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RAJASTHAN CYLINDERS AND CONTAINERS LIMITED Vs. U.O.I AND ANR | of United States in Monsanto Co. v. Spray-Rite Service Corp. 17 is relevant and is reproduced hereunder: 16 17 The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective. 99. This test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp. : …..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 ……. …...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing….. xxx xxx xxx Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, [475 U.S. 574, 597] the conduct does not give rise to an inference of conspiracy. See Cities Service, supra, at 278-280. 100. Similarly, in Bell Atlantic Corp v. Twombly , the U.S. Supreme Court held as under: 1-3] Because §1 of the Sherman Act does not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy, Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conduct stem[s] from independent decision or from an agreement, tacit or express, Theatre Enterprises, 346 U. S., at 540. While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or … itself constituting a Sherman Act offense. Id., at 540–541. Even conscious parallelism, a common reaction of firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) ( The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1 ); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy). [4-6] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986). 101. After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant case. 102. We are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been cleared. 103. We, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging. | 1[ds]Though the expression collusive bidding is not defined in the Act, it appears that both bid rigging and collusive bidding are overlapping concepts. This position stands accepted in Excel Crop Care Limited case which should be found from the following discussion therefrom:38. Mr Neeraj Kishan Kaul, learned Additional Solicitor General, refuted the aforesaid submission with vehemence by urging that bid rigging and collusive bidding are not mutually exclusive and these are overlapping concepts. Illustratively, he referred to the findings of CCI, as approved by COMPAT, in the instant case itself to the effect that the appellants herein had manipulated the process of bidding on the ground that bids were submitted on9 collusively, which was only the beginning of theagreement between the parties and this continued through the opening of the price bids on9 and thereafter negotiations on9 when all the parties reduced their bids by same figure of Rs 2 to bring their bid down to Rs 386 per kg from Rs 388 per kg. From this example, he submitted that on9 there was a collusive bidding but with concerted negotiations on, in the continued process, it was rigging of the bid that was practiced by the appellants. We are inclined to agree with this pellucid submission of the learned Additional Solicitor GeneralThe first proposition of Ms. Divan, viz. there is no competition, has two facets. First, the legal one which concerns the jurisdiction of the CCI to deal with such matters and the other is factual, which is to be examined on the basis of facts in these cases. Insofar as the first component is concerned, having regard to the aforesaid scheme of the Act, we are not convinced with the argument of Ms. Madhavi Divan that there is no possibility of a competition in these cases and, therefore, CCI had no jurisdiction to carry out any such investigation. The scope and ambit of the provisions of Section 3 have been considered in detail in Excel Crop Care Limited case. This Section prohibitsagreements and brings about the prime objective of the Competition Act. These aspects were noted in Excel Crop Care Limited, relevant portions whereof are already extracted above. We may also quote the following portion from the judgment of this Court in Steel Authority of India Limited wherein objective behind the Act was highlighted in the following manner:125. We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country. In other words, the Act requires not only protection of free trade but also protection of consumer interest. The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country. Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised ifd schedule and, in any case, expeditious disposal by the Commission is not adhered to. The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31,T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensured disposal of such mattersWe would like to reemphasise that the purpose of the Act is not only to illuminate practices having adverse effect on the competition but also to promote and sustain competition in the market. Enforcement provides remedies to avoid situation that will lead to decrease competition in the market. Therefore, effective enforcement is important not only to sanctionbut also to deter future competitive practices. In the present case itself, there are sixty suppliers of the product for which there are three buyers. After all, each supplier would like to beso that it is able to get order for larger quantities than the other. In this sense, there would be a competition among them. Further, it would also be in the interest of the buyers like IOCL etc. that the elements of healthy competition persists in the market. In any case, it is the duty of the CCI to ensure that the conditions which have tendency to kill the competition are to be curbed. It is also the function of the CCI to ensure that there is a competition so that benefits of such competition are reaped by the consumers. However, insofar as certain factual aspects highlighted by the appellants are concerned, they would be dealt with while examining the third proposition, as we deem it more appropriate to discuss these two aspects togetherFrom the aforesaid discussion, it is clear that as far as CCI is concerned, it has come to the conclusion that there was a cartelisation among the appellants herein and a concerted decision was taken to rig the bids which were submitted persuant to the tenders issued by IOCL. On the other hand, the appellants argue that there was no such agreement and even if the bids of many bidders were identical in nature, the bids were driven by market conditions. Their plea is that there was a situation of oligopsony and the modus which was adopted by IOCL in floating the tenders and awarding the contracts would show that the determination of price was entirely within the control of the IOCL. As per them, the way price was determined for supply of these cylinders, it had become an open secret known to everybody. Therefore, there was no question of any competition and no possibility of adversely affecting that competition by entering into any contractHowever, that is only one side of the coin. The aforesaid factors are to be analysed keeping in mind the ground realities that were prevailing, which are pointed out by the appellants. These attendant circumstances are argued in detail by the counsel for the appellants which have already been taken note of. We may recapitulate the same in brief hereinbelow:(i) In the present case there are only three buyers. Among them, IOCL is the biggest buyer with 48% market share. It is also a matter of record that all these appellants are manufacturers of 14.2 kg gas cylinders to the three buyers who are available in the market, nanely, IOCL, HPCL and BPCL. If these three buyers do not purchase from any of the appellants, that particular appellant would not be in a position to sell those cylinder to any other entity as there are no other buyers.(ii) There are only three buyers, it may not attract many to enter the field and manufacture these cylinders. It is because of limited number of buyers and for some reason if they do not purchase, the manufacturer would be nowhere. That may deter the persons to enter the field.(iii) The manner in which the tenders are floated by IOCL and the rates at which these are awarded, are an indicator that it is the IOCL which calls the shots insofar as price control is concerned. It has come in evidence that the IOCL undertakes the exercise of having its internal estimates about the cost of these cylinders. Their own expert arrived at a figue of Rs. 1106.61 paisa per cylinder. All the tenders which have been accepted are for a price lesser than the aforesaid estimate of IOCL itself. That apart, the modus adopted by the IOCL is that that final price is negotiated by it and the contract is not awarded at the rate quoted by bidder who turns out to be. Negotiations are held with such a bidder who iswhich generaly leads to further reduction of price than the one quoted by. Thereafter, the other bidders who may beetc. are awarded the contract at the rate at which it is awarded to. Thus, ultimately, all the bidders supply the goods at the same rate which is fixed by the IOCL after negotiating withbidder. The only difference is that bidder who iswould be able to receive the order for larger quantity thanmay get an order of more quantity than(iv) It has also come on record that there are very few suppliers. For the tender in question, there were 50 parties already in the fray and 12 new entrants were admitted. Number of 12, in such a scenario, cannot be treated as less. Therefore, the conclusion of CCI that the appellants ensured that there should not be entry of new entrant may not be correct.(v) Since there are not many manufacturers and supplies are needed by the three buyers on regular basis, IOCL ensures that all those manufacturers whose bids are technically viable, are given some order for the supply of specific cylinder. For this purpose, it has framed its broad policy as well. This also shows that control remains with IOCL. Thus, the appellants appear to be correct when they say that all the participants in the bidding process were awarded contracts in some State or the other which was aimed at ensuring a bigger pool of manufacturers so that the supply of this essential product is always maintained for the benefit of the general public. Had IOCL left some manufacturers empty handed, in all likelihood, they would have shut their shops. However, IOCL wanted all manufacturers to be in the fray in its own interest. Therefore, it was necessary to keep all parties afloat and this explains why all 50 parties obtained order along with 12 new entrants.(vi) There is another very relevant factor pointed out by the appellants, viz., the governmental control which is regulated by law. As pointed out above, it is not only the three oil companies which can supply LPG to domestic consumers in 14.2 kg LPG cylinders as mandated in the LPG (Regulation and Distribution) Order, 2000 which is issued under the provisions of Essential Commodities Act, 1955, even the price at which the LPG cylinder is to be supplied to the consumer is controlled by the Government. Following features of the aforesaid LPG Order, 2000, are significant:• The LPG suppliedin 14.2 kg gas cylinders is an essential commodity.• The distribution of LPG in 14.2 kgs cylinders takes place as part of a public distribution system defined under clause 2(1) of the Order asthe system of distribution, marketing or selling of liquefied petroleum gas by a Government Oil Company at the Government controlled or declared price through a distribution system approved by the Central or State Government• The price to the consumer is controlled by the Government.• The supply of LPG to domestic consumers shall be made only in 14.2 kg gas cylinders.• According to clauses 4 and 5 read with Schedule III of the LPG Order, parallel marketeers who supply and distribute LPG cylinders, may do so only for cylinders with size and specifications other than those specified in Schedule IIThe manner in which tendering process takes place would show that in such a competitive scenariao, the bid which the different bidder would be submitting becomes obvious. It has come on record that just a few days before the tender in question, another tender was floated by BPCL and on opening of the said tender the rates ofetc. came to be known. In a scenario like this, that obviously becomes a guiding factor for the bidders to submit their bidsWhen we keep in mind the aforesaid fact situation on the ground, those very factors on the basis of which the CCI has come to the conclusion that there was cartelization, in fact, become valid explanations to the indicators pointed out by the CCI. We have already commented about the market conditions and small number of suppliers. We have also mentioned that 12 new entrants cannot be considered as entry of very few new suppliers where the existing suppliers were only 50. Identical products along with market conditions for which there would be only three buyers, in fact, would go in favour of the appellants. The factor of repetitive bidding, though appears to be a factor against the appellants, was also possible in the aforesaid scneario. The prevailing conditions in fact rule out the possibility of much price variations and all the manufacturers are virtually forced to submit their bid with a price that is quite close to each other. Therefore, it became necessary to sustain themselves in the market. Hence, the factor that these suppliers are from different region having different cost of manufacture would lose its significance. It is a situation where prime condition is to quote the price at which a particular manufacturer can bag an order even when its manufacturing cost is more than the manufacturing cost of others. The main purpose for such a manufacuring would be to remain in the fray and not to lose out. Therefore, it would be ready to accept lesser margin. This would answer why there were near identical bids despite varying costIn Theatre Enterprises v. Paramount Films, the Supreme Court of United States held as under:The crucial question is whether respondents conduct toward petitioner stemmed from independent decision or from an agreement, tacit or express. To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement. Interstate Circuit. But this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offence. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy; but conscious parallelism has not yet read conspiracy out of the Sherman Act entirelyIn this regard, the test laid down by the Supreme Court of United States in Monsanto Co. v.e Service Corp. 17 is relevant and is reproduced hereunder: 16 17The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer andd distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objectiveThis test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp.…..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v.e Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 …….…...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing…..Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct isSimilarly, in Bell Atlantic Corp v. Twombly, the U.S. Supreme Court held as under:] Because §1 of the Sherman Actdoes not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy,Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conductstem[s] from independent decision or from an agreement, tacit or express,Theatre Enterprises, 346 U. S., at 540. While a showing of parallelbusiness behavior is admissible circumstantial evidence from which the fact finder may infer agreement,conclusively establishing agreement or … itself constituting a Sherman Act offenseId., at 540–541. Even conscious parallelism, a common reaction offirms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisionsis not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) (The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy).] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g.,s Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v.e Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986)After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant caseWe are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been clearedWe, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging. | 1 | 24,766 | 3,620 | ### 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:
of United States in Monsanto Co. v. Spray-Rite Service Corp. 17 is relevant and is reproduced hereunder: 16 17 The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective. 99. This test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp. : …..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 ……. …...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing….. xxx xxx xxx Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, [475 U.S. 574, 597] the conduct does not give rise to an inference of conspiracy. See Cities Service, supra, at 278-280. 100. Similarly, in Bell Atlantic Corp v. Twombly , the U.S. Supreme Court held as under: 1-3] Because §1 of the Sherman Act does not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy, Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conduct stem[s] from independent decision or from an agreement, tacit or express, Theatre Enterprises, 346 U. S., at 540. While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or … itself constituting a Sherman Act offense. Id., at 540–541. Even conscious parallelism, a common reaction of firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) ( The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1 ); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy). [4-6] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986). 101. After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant case. 102. We are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been cleared. 103. We, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging.
### Response:
1
### Explanation:
this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offence. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy; but conscious parallelism has not yet read conspiracy out of the Sherman Act entirelyIn this regard, the test laid down by the Supreme Court of United States in Monsanto Co. v.e Service Corp. 17 is relevant and is reproduced hereunder: 16 17The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer andd distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objectiveThis test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp.…..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v.e Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 …….…...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing…..Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct isSimilarly, in Bell Atlantic Corp v. Twombly, the U.S. Supreme Court held as under:] Because §1 of the Sherman Actdoes not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy,Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conductstem[s] from independent decision or from an agreement, tacit or express,Theatre Enterprises, 346 U. S., at 540. While a showing of parallelbusiness behavior is admissible circumstantial evidence from which the fact finder may infer agreement,conclusively establishing agreement or … itself constituting a Sherman Act offenseId., at 540–541. Even conscious parallelism, a common reaction offirms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisionsis not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) (The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy).] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g.,s Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v.e Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986)After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant caseWe are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been clearedWe, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging.
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UNION OF INDIA Vs. BHARTI AIRTEL LTD. & ORS | Gujarat High Court and the Delhi High Court. The conclusion so recorded by the Punjab & Haryana High Court will have no bearing on the facts of this case in light of the opinion expressed in this judgment, as we have held that consequent to submission/filing of Form GSTR-3B, as envisaged by the 2017 Act, it can be rectified only in the manner specified in Section 39(9) read with Rule 61(5), as applicable at the relevant time. In other words, the rectification can be done only in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed and not in the return for the period to which it relates. 45. The High Court in the impugned judgment, has also adverted to the decisions of the Delhi High Court in Blue Bird Pure Pvt. Ltd. vs. Union of India & Ors. 2019 SCC OnLine Del 9250 and in Lease Plan India Private Limited vs. Government of National Capital Territory of Delhi & Ors. (decided on 13.9.2019 in W.P.(C) No. 3309/2019) For the same reasons, the conclusion reached in the said two decisions will be of no avail to respondent No. 1. 46. We need not multiply the authorities referred to in the concerned judgments, and cited before us, as in our opinion, these decisions have not dealt with the cardinal aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, which are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC and of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. Non- performance or non-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. The provision contained in Section 39(9) of the 2017 Act and Rule 61 of the Rules framed thereunder, as applicable at the relevant time, apply with full vigor to the returns filed by the registered person in Form GSTR-3B. 47. Significantly, the registered person is not denied of the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it is not a case of denial of availment of ITC as such. If at all, it is only a postponement of availment of ITC. The ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year. It is a different matter that despite the availability of funds in the electronic credit ledger, the registered person opts to discharge OTL by paying cash. That is a matter of option exercised by the registered person on which the tax authorities have no control, whatsoever, nor they have any role to play in that regard. Further, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa. 48. A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred. Any unilateral change in such return as per the present dispensation, would have cascading effect on the recipients and suppliers associated with the concerned transactions. There would be complete uncertainty and no finality could ever be attached to the self-assessment return filed electronically. We agree with the submission of the appellant that any indulgence shown contrary to the statutory mandate would not only be an illegality but in reality, would simply lead to chaotic situation and collapse of tax administration of Union, States and Union Territories. Resultantly, assessee cannot be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records. 49. As noted earlier, the matching and correction process happens on its own as per the mechanism specified in Sections 37 and 38, after which Form GSTR-3 is generated for the purposes of submission of returns; and once it is submitted, any changes thereto may have cascading effect. Therefore, the law permits rectification of errors and omissions only at the initial stages of Forms GSTR-1 and GSTR-3, but in the specified manner. It is a different dispensation provided than the one in pre-GST period, which did not have the provision of auto-populated records and entries. 50. Suffice it to conclude that the challenge to the impugned Circular No. 26/26/2017-GST dated 29.12.2017, is unsustainable for the reasons noted hitherto. We hold that stipulations in the stated Circular including in paragraph 4 thereof, are consistent with the provisions of the 2017 Acts and the Rules framed thereunder. Having said that, it must follow that there is no necessity of reading down paragraph 4 of the impugned Circular as has been done by the High Court vide impugned judgment. In any case, the direction issued by the High Court being in the nature of issuing writ of mandamus to allow the writ petitioner to rectify Form GSTR-3B for the period - July to September 2017, in the teeth of express statutory dispensation, cannot be sustained. 51. No other issue has been dealt with by the High Court except to read down of the stated Circular, which as aforesaid, is wholly unnecessary. | 1[ds]30. At the outset, the preliminary issue raised by the appellant regarding jurisdiction of the Delhi High Court to entertain the writ petition or that the writ petition suffered from the vice of non- joinder of the necessary parties including that the High Court could not have issued a writ of mandamus, need not detain us. As regards the jurisdiction of the Delhi High Court, the registered office of respondent No. 1 is in Delhi. The appellant (respondent in the writ petition) also has its office in Delhi. The relief claimed in the writ petition amongst others, was to challenge provisions of the central Act and the circulars issued by the competent authority having its office in Delhi. Hence, the jurisdiction of the Delhi High Court cannot be a matter of any doubt. Similarly, the argument of the appellant that State Governments/Union Territories are necessary parties, does not take the matter any further. As aforesaid, the writ petitioner was not challenging the individual action of the States or the Union Territories, but a policy decision of the Central authority who had issued the impugned Circular, namely, the Commissioner (GST). If the writ petitioner succeeded in that challenge, the consequential relief would follow. In our opinion, non-impleadment of respective States/Union Territories would not come in the way of the writ petitioner to pursue the cause brought before the High Court by way of subject writ petition. Even the argument regarding High Court having exceeded jurisdiction in issuing writ of mandamus, does not commend to us. If the conclusion reached by the High Court regarding the efficacy of impugned Circular was to be upheld, no fault can be found with the directions issued by it in paragraph 24 of the impugned judgment, reproduced above. Accordingly, the preliminary objections regarding the maintainability of the writ petition and the jurisdiction of the Delhi High Court deserve to be rejected.Indisputably, the Circular has been issued to notify the clarification given by the Board in exercise of its powers conferred under Section 168(1) of the 2017 Act in order to consolidate the information in various notifications and circulars regarding return filing and to ensure uniformity in implementation across field formations. The decision was taken by the Board after considering various representations received seeking clarifications on various aspects of return filing such as return filing dates, applicability of quantum of late fee, amendment of errors in submitting/filing of Form GSTR-3B and other related queries. In strict sense, it is not the direction issued by the Commissioner (GST) as such, but it is notifying the decision(s) of the Board taken in exercise of its powers conferred under Section 168(1) of the 2017 Act. It is a different matter that a circular is issued under the signatures of Commissioner (GST), but in essence, it is notifying the decision(s) of the Board, which has had authority and power to issue directions. Accordingly, the argument that the impugned Circular dated 29.12.2017 has been issued without authority of law, needs to be rejected.32. Reverting to the analysis of the issues and contentions done by the High Court, it is primarily focused on the grievance of the writ petitioner that due to non-operability of Form GSTR-2A at the relevant time (July to September 2017), it had been denied of access to the information about its electronic credit ledger account and consequently, availing of ITC for the relevant period and instead to discharge the OTL by paying cash to its vendors. Thus, it has resulted in payment of double tax and unfair advantage to the tax authorities because of their failure to operationalize the statutory forms enabling auto-populating statement of inward supplies of the recipient and outward supplies including facility of matching and correcting the discrepancies electronically. The High Court, however, did not enquire into the cardinal question as to whether the writ petitioner was required to be fully or wholly dependent on the auto generated information in the electronic common platform for discharging its obligation to pay OTL for the relevant period between July and September 2017. The answer is - an emphatic No. In that, the writ petitioner being a registered person, was under a legal obligation to maintain books of accounts and records as per the provisions of the 2017 Act and Chapter VII of the 2017 Rules regarding the transactions in respect of which the OTL would occur. Even in the past (till recently upto the 2017 Act came into force), during the pre-GST regime, the writ petitioner (being registered person/assessee) had been maintaining such books of accounts and records and submitting returns on its own. No such auto-populated electronic data was in vogue. It is the same pattern which had to be followed by the registered person in the post-GST regime.36. Section 59 does make reference to Section 39, which deals with furnishing of returns, but the fact remains that for furnishing of returns, preparatory work has to be done by the assessee himself and is not fully or wholly dependent on the common electronic portal for that purpose. Just couple of weeks before the relevant period between July and September 2017, the writ petitioner/respondent No. 1 had been doing that exercise which it was expected to continue even under the post-GST scheme. The factum of non-operability of Form GSTR-2A, therefore, is flimsy plea taken by the writ petitioner/respondent No. 1. Indeed, if the stated form was operational, the same would have come handy to the writ petitioner for doing self-assessment regarding eligibility of ITC and availing thereof. But it is a feeble excuse given by the writ petitioner/respondent No. 1 to assail the condition specified in impugned Circular dated 29.12.2017 regarding the rectification of the return submitted manually in Form GSTR-3B for the relevant period (July to September 2017).37. The question of reading down paragraph 4 of the said Circular would have arisen only if the same was to be in conflict with the express provision in the 2017 Act and the Rules framed thereunder. The express provision in the form of Section 39(9) clearly posits that omission or incorrect particulars furnished in the return in Form GSTR-3B can be corrected in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed. This very position has been restated in the impugned Circular. It is, therefore, not contrary to the statutory dispensation specified in Section 39(9) of the Act. The High Court, however, erroneously noted that there is no provision in the Act, which restricts such rectification of the return in the period in which the error is noticed. It is then noted by the High Court that as there is no possibility of getting refund of surplus or excess ITC shown in the electronic credit ledger, therefore, the only remedy that can enable the writ petitioner to enjoy the benefit of the seamless utilization of the ITC is by way of rectification in its annual tax return (Form GSTR-3B) for the relevant period. Further, the High Court in paragraph 23 of the impugned judgment, noted that the relief sought in the case before it, was indispensable. This logic does not commend to us. For, if there is no provision regarding refund of surplus or excess ITC in the electronic credit ledger, it does not follow that the assessee concerned who has discharged OTL by paying cash (which he is free to pay in cash in spite of the surplus or excess electronic credit ledger account), can later on ask for swapping of the entries, so as to show the corresponding OTL amount in the electronic cash ledger from where he can take refund. Payment for discharge of OTL by cash or by way of availing of ITC, is a matter of option, which having been exercised by the assessee, cannot be reversed unless the Act and the Rules permit such reversal or swapping of the entries. As a matter of fact, Section 39(9) provides for an express mechanism to correct the error in returns for the month or quarter during which such omission or incorrect particulars have been noticed.38. The entire edifice of the grievance of the writ petitioner (respondent No. 1) was founded on non-operability of Form GSTR- 2A during the relevant period, which plea having been rejected as untenable and flimsy, it must follow that the writ petitioner/respondent No. 1 with full knowledge and information derived from its books of accounts and records, had done self- assessment and assessed the OTL for the relevant period and chose to discharge the same by paying cash. Having so opted, it is not open to the respondent to now resile from the legal option already exercised. It is for that reason, the respondent has advisedly propounded a theory that in absence of (electronic-auto populated record) mechanism made available as per Sections 37 and 38, return filed in Form GSTR-3B is not ascribable to Section 39(9) of the 2017 Act read with Rule 61(5) of the 2017 Rules. This is yet another untenable plea taken by respondent No. 1. For, the appellant having realized that the mechanism specified in Sections 37 and 38 of the 2017 Act cannot be put in place due to non- operability of the forms governing such mechanism, had to amend the rules to make a stop-gap arrangement until the entire mechanism became operational. Appellant not only amended the statutory rule but also provided for filing of return manually in Form GSTR-3B electronically through the common portal with effect from July 2017. This is manifest from the circulars/notifications issued from time to time including the timeline for submitting the returns.39. It is futile to urge that Section 39(9) has no application to the fact situation of the present case. In that, allowing filing of return in Form-GSTR-3B albeit a stop gap arrangement, is ascribable to Section 39 of the 2017 Act read with Rule 61 of the 2017 Rules. Indeed, it is not comparable to the mechanism specified for electronically generated Form GSTR-3 referable to Rule 61. Nevertheless, Form GSTR-3B is prescribed as a return to be furnished by the registered person and by the subsequent amendment of Rule 61(5) brought into force with effect from 01.01.2017, it has been clarified that such person need not furnish return in Form GSTR-3 later on. Notably, the validity of that amendment including that of Notification dated 09.10.2019 bearing No. 49/2019, is not put in issue before us.40. No doubt, in the initial stages, it was notified that Form GSTR-3B will be in lieu of Form GSTR-3 but that was soon corrected by deletion of that expression. At the same time, as the mechanism for furnishing return in terms of Sections 37 and 38 was not operationalized during the relevant period (July to September 2017) and became operational only later, the efficacy of Form GSTR-3B being a stop gap arrangement for furnishing of return, as was required under Section 39 read with Rule 61, would not stand whittled down in any manner. It would still be considered as a return for all purposes though filled manually electronically.41. The Gujarat High Court in the case of AAP & Co., Chartered Accountants through Authorized Partner vs. Union of India & Ors. 2019-TIOL-1422-HC-AHM-GST, was called upon to consider the question whether the return in Form GSTR-3B is the return required to be filed under Section 39 of the 2017 Act. Although, at the outset it noted that the concerned writ petition had been rendered infructuous but, went on to answer the question raised therein. It took the view that Form GSTR-3B was only a temporary stop-gap arrangement till due date of filing of return Form GSTR-3 is notified. We do not subscribe to that view. Our view stands reinforced by the subsequent amendment to Rule 61(5), restating and clarifying the position that where return in Form GSTR-3B has been furnished by the registered person, he shall not be required to furnish the return in Form GSTR-3. This amendment was notified and came into effect from 01.07.2017(Vide Notification/GSR No. 772(E) dated 9th October, 2019) retrospectively. The validity of this amendment has not been put in issue.42. The Delhi High Court in the impugned judgment, has taken note of decision of the Andhra Pradesh High Court in case of Panduranga Stone Crushers vs. Union of India & Ors. 2019-TIOL-1975-HC-AP-GST This decision dealt with the period between July 2017 and March 2018 for the financial year 2017-2018. The petitioner therein had submitted Form GSTR-3B return through GST portal, as required. While doing so, he had inadvertently and by mistake reported IGST input tax credit in a column relating to import of goods and services instead of placing that particular amount, namely, IGST input tax credit in all other ITC column. The writ petitioner asserted that he was entitled to rectify such mistake which had crept in Form GSTR-3B returns. The Union of India had contended that said situation was covered by Section 39(9) of the 2017 Act and the petitioner could rectify the omission, but did not avail the chance to rectify or modify the returns. Therefore, he was not entitled to relief as claimed in the writ petition. The Andhra Pradesh High Court relied on the decision of the Gujarat High Court in AAP & Co.(supra at Footnote No. 10) and the decision of the Kerala High Court in Saji S. Proprietor, Adithya and Ambadi Traders & Anr. vs. The Commissioner, State GST Department & Anr.(dated 12.11.2018 in W.P.(C) No. 35868/2018), wherein the Kerala High Court had permitted the request for transfer of tax liability from the head SGST to IGST, enabling the registered person to carry out rectification. The Andhra Pradesh High Court allowed the petitioner to follow the same suit. The view taken in these decisions though not assailed before this Court cannot impact the logic commended to us in this judgment on the basis of interpretation and application of the relevant provisions to the facts of this case.43. The Delhi High Court in the present case then relied on the decision of the Punjab & Haryana High Court in the case of Adfert Technologies Pvt. Ltd. vs. Union of India & Ors. 2019-TIOL-2519-HC-P&H-GST In that case, the petitioner was unable to file return before 31.12.2017 being the extended time due to heavy load upon accountants, who were having number of assesses, lack of proper knowledge of computer system, complexity in filling different columns of TRAN-1 etc. The Punjab & Haryana High Court noted that GST was an electronic based tax regime and most of people of India were not conversant with electronic mechanism and not able to load simple forms electronically. Be it noted that the factum of inability to access the electronic portal to submit return within the specified time due to technical faults in the portal is entirely different than the assertion to grant adjustment of amount voluntarily paid in cash by the assessee towards OTL. The latter can be allowed only if the law enacted by the Parliament expressly permitted such swapping of entries of the electronic credit ledger vis-a-vis electronic cash ledger; and certainly not permissible in the teeth of Section 39(9) of the 2017 Act. Relying on the decision of the Gujarat High Court in Siddharth Enterprises vs. The Nodal Officer 2019-TIOL-2068-HC-AHM-GST, however, the Court noted that denial of credit of tax/duty paid under existing Acts would amount to violation of Article 14 and 300A of the Constitution of India. It noted that unutilized credit has been recognized as vested right and property in terms of Article 300A of the Constitution. This decision was on facts of that case concerning erroneous entry recorded in Form GSTR-3B and not regarding right asserted to swap the mode of payment of OTL in cash to be adjusted against electronic credit ledger as in the present case in the guise of rectification of return filed in Form GSTR-3B for the earlier period.44. Reference was then made to decision of this Court in MRF Ltd., Kottayam vs. Asstt. Commissioner (Assessment), Sales Tax & Ors. (2006) 8 SCC 702, wherein it is held that a person may have a legitimate expectation of being treated in a certain way by an administrative authority, even though he has no legal right in private law to receive such treatment. The High Court then referred to the decision of Delhi high Court in Krish Authomotors Pvt. Ltd. vs. Union of India & Ors. 2019-TIOL-2153-HC-DEL-GST, which had permitted the writ petitioners to either submit the TRAN-I form electronically by opening the electronic portal or to tender the said form manually before the specified date and thereafter to process the claim for ITC in accordance with law. The Punjab & Haryana High Court agreed with the view taken by the Gujarat High Court and the Delhi High Court. The conclusion so recorded by the Punjab & Haryana High Court will have no bearing on the facts of this case in light of the opinion expressed in this judgment, as we have held that consequent to submission/filing of Form GSTR-3B, as envisaged by the 2017 Act, it can be rectified only in the manner specified in Section 39(9) read with Rule 61(5), as applicable at the relevant time. In other words, the rectification can be done only in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed and not in the return for the period to which it relates.45. The High Court in the impugned judgment, has also adverted to the decisions of the Delhi High Court in Blue Bird Pure Pvt. Ltd. vs. Union of India & Ors. 2019 SCC OnLine Del 9250 and in Lease Plan India Private Limited vs. Government of National Capital Territory of Delhi & Ors. (decided on 13.9.2019 in W.P.(C) No. 3309/2019) For the same reasons, the conclusion reached in the said two decisions will be of no avail to respondent No. 1.46. We need not multiply the authorities referred to in the concerned judgments, and cited before us, as in our opinion, these decisions have not dealt with the cardinal aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, which are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC and of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. Non- performance or non-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. The provision contained in Section 39(9) of the 2017 Act and Rule 61 of the Rules framed thereunder, as applicable at the relevant time, apply with full vigor to the returns filed by the registered person in Form GSTR-3B.47. Significantly, the registered person is not denied of the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it is not a case of denial of availment of ITC as such. If at all, it is only a postponement of availment of ITC. The ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year. It is a different matter that despite the availability of funds in the electronic credit ledger, the registered person opts to discharge OTL by paying cash. That is a matter of option exercised by the registered person on which the tax authorities have no control, whatsoever, nor they have any role to play in that regard. Further, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa.48. A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred. Any unilateral change in such return as per the present dispensation, would have cascading effect on the recipients and suppliers associated with the concerned transactions. There would be complete uncertainty and no finality could ever be attached to the self-assessment return filed electronically. We agree with the submission of the appellant that any indulgence shown contrary to the statutory mandate would not only be an illegality but in reality, would simply lead to chaotic situation and collapse of tax administration of Union, States and Union Territories. Resultantly, assessee cannot be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records.49. As noted earlier, the matching and correction process happens on its own as per the mechanism specified in Sections 37 and 38, after which Form GSTR-3 is generated for the purposes of submission of returns; and once it is submitted, any changes thereto may have cascading effect. Therefore, the law permits rectification of errors and omissions only at the initial stages of Forms GSTR-1 and GSTR-3, but in the specified manner. It is a different dispensation provided than the one in pre-GST period, which did not have the provision of auto-populated records and entries.50. Suffice it to conclude that the challenge to the impugned Circular No. 26/26/2017-GST dated 29.12.2017, is unsustainable for the reasons noted hitherto. We hold that stipulations in the stated Circular including in paragraph 4 thereof, are consistent with the provisions of the 2017 Acts and the Rules framed thereunder. Having said that, it must follow that there is no necessity of reading down paragraph 4 of the impugned Circular as has been done by the High Court vide impugned judgment. In any case, the direction issued by the High Court being in the nature of issuing writ of mandamus to allow the writ petitioner to rectify Form GSTR-3B for the period - July to September 2017, in the teeth of express statutory dispensation, cannot be sustained.51. No other issue has been dealt with by the High Court except to read down of the stated Circular, which as aforesaid, is wholly unnecessary. | 1 | 12,531 | 4,202 | ### Instruction:
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Gujarat High Court and the Delhi High Court. The conclusion so recorded by the Punjab & Haryana High Court will have no bearing on the facts of this case in light of the opinion expressed in this judgment, as we have held that consequent to submission/filing of Form GSTR-3B, as envisaged by the 2017 Act, it can be rectified only in the manner specified in Section 39(9) read with Rule 61(5), as applicable at the relevant time. In other words, the rectification can be done only in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed and not in the return for the period to which it relates. 45. The High Court in the impugned judgment, has also adverted to the decisions of the Delhi High Court in Blue Bird Pure Pvt. Ltd. vs. Union of India & Ors. 2019 SCC OnLine Del 9250 and in Lease Plan India Private Limited vs. Government of National Capital Territory of Delhi & Ors. (decided on 13.9.2019 in W.P.(C) No. 3309/2019) For the same reasons, the conclusion reached in the said two decisions will be of no avail to respondent No. 1. 46. We need not multiply the authorities referred to in the concerned judgments, and cited before us, as in our opinion, these decisions have not dealt with the cardinal aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, which are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC and of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. Non- performance or non-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. The provision contained in Section 39(9) of the 2017 Act and Rule 61 of the Rules framed thereunder, as applicable at the relevant time, apply with full vigor to the returns filed by the registered person in Form GSTR-3B. 47. Significantly, the registered person is not denied of the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it is not a case of denial of availment of ITC as such. If at all, it is only a postponement of availment of ITC. The ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year. It is a different matter that despite the availability of funds in the electronic credit ledger, the registered person opts to discharge OTL by paying cash. That is a matter of option exercised by the registered person on which the tax authorities have no control, whatsoever, nor they have any role to play in that regard. Further, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa. 48. A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred. Any unilateral change in such return as per the present dispensation, would have cascading effect on the recipients and suppliers associated with the concerned transactions. There would be complete uncertainty and no finality could ever be attached to the self-assessment return filed electronically. We agree with the submission of the appellant that any indulgence shown contrary to the statutory mandate would not only be an illegality but in reality, would simply lead to chaotic situation and collapse of tax administration of Union, States and Union Territories. Resultantly, assessee cannot be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records. 49. As noted earlier, the matching and correction process happens on its own as per the mechanism specified in Sections 37 and 38, after which Form GSTR-3 is generated for the purposes of submission of returns; and once it is submitted, any changes thereto may have cascading effect. Therefore, the law permits rectification of errors and omissions only at the initial stages of Forms GSTR-1 and GSTR-3, but in the specified manner. It is a different dispensation provided than the one in pre-GST period, which did not have the provision of auto-populated records and entries. 50. Suffice it to conclude that the challenge to the impugned Circular No. 26/26/2017-GST dated 29.12.2017, is unsustainable for the reasons noted hitherto. We hold that stipulations in the stated Circular including in paragraph 4 thereof, are consistent with the provisions of the 2017 Acts and the Rules framed thereunder. Having said that, it must follow that there is no necessity of reading down paragraph 4 of the impugned Circular as has been done by the High Court vide impugned judgment. In any case, the direction issued by the High Court being in the nature of issuing writ of mandamus to allow the writ petitioner to rectify Form GSTR-3B for the period - July to September 2017, in the teeth of express statutory dispensation, cannot be sustained. 51. No other issue has been dealt with by the High Court except to read down of the stated Circular, which as aforesaid, is wholly unnecessary.
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agreed with the view taken by the Gujarat High Court and the Delhi High Court. The conclusion so recorded by the Punjab & Haryana High Court will have no bearing on the facts of this case in light of the opinion expressed in this judgment, as we have held that consequent to submission/filing of Form GSTR-3B, as envisaged by the 2017 Act, it can be rectified only in the manner specified in Section 39(9) read with Rule 61(5), as applicable at the relevant time. In other words, the rectification can be done only in the return to be furnished in the month or quarter during which such omission or incorrect particulars are noticed and not in the return for the period to which it relates.45. The High Court in the impugned judgment, has also adverted to the decisions of the Delhi High Court in Blue Bird Pure Pvt. Ltd. vs. Union of India & Ors. 2019 SCC OnLine Del 9250 and in Lease Plan India Private Limited vs. Government of National Capital Territory of Delhi & Ors. (decided on 13.9.2019 in W.P.(C) No. 3309/2019) For the same reasons, the conclusion reached in the said two decisions will be of no avail to respondent No. 1.46. We need not multiply the authorities referred to in the concerned judgments, and cited before us, as in our opinion, these decisions have not dealt with the cardinal aspect of statutory obligation fastened upon the registered person to maintain books of accounts and record within the meaning of Chapter VII of the 2017 Rules, which are primary documents and source material on the basis of which self-assessment is done by the registered person including about his eligibility and entitlement to get ITC and of OTL. Form GSTR-2A is only a facilitator for taking an informed decision while doing such self-assessment. Non- performance or non-operability of Form GSTR-2A or for that matter, other forms, will be of no avail because the dispensation stipulated at the relevant time obliged the registered person to submit returns on the basis of such self-assessment in Form GSTR-3B manually on electronic platform. The provision contained in Section 39(9) of the 2017 Act and Rule 61 of the Rules framed thereunder, as applicable at the relevant time, apply with full vigor to the returns filed by the registered person in Form GSTR-3B.47. Significantly, the registered person is not denied of the opportunity to rectify omission or incorrect particulars, which he could do in the return to be furnished for the month or quarter in which such omission or incorrect particulars are noticed. Thus, it is not a case of denial of availment of ITC as such. If at all, it is only a postponement of availment of ITC. The ITC amount remains intact in the electronic credit ledger, which can be availed in the subsequent returns including the next financial year. It is a different matter that despite the availability of funds in the electronic credit ledger, the registered person opts to discharge OTL by paying cash. That is a matter of option exercised by the registered person on which the tax authorities have no control, whatsoever, nor they have any role to play in that regard. Further, there is no express provision permitting swapping of entries effected in the electronic cash ledger vis-a-vis the electronic credit ledger or vice versa.48. A priori, despite such an express mechanism provided by Section 39(9) read with Rule 61, it was not open to the High Court to proceed on the assumption that the only remedy that can enable the assessee to enjoy the benefit of the seamless utilization of the input tax credit is by way of rectification of its return submitted in Form GSTR-3B for the relevant period in which the error had occurred. Any unilateral change in such return as per the present dispensation, would have cascading effect on the recipients and suppliers associated with the concerned transactions. There would be complete uncertainty and no finality could ever be attached to the self-assessment return filed electronically. We agree with the submission of the appellant that any indulgence shown contrary to the statutory mandate would not only be an illegality but in reality, would simply lead to chaotic situation and collapse of tax administration of Union, States and Union Territories. Resultantly, assessee cannot be permitted to unilaterally carry out rectification of his returns submitted electronically in Form GSTR-3B, which inevitably would affect the obligations and liabilities of other stakeholders, because of the cascading effect in their electronic records.49. As noted earlier, the matching and correction process happens on its own as per the mechanism specified in Sections 37 and 38, after which Form GSTR-3 is generated for the purposes of submission of returns; and once it is submitted, any changes thereto may have cascading effect. Therefore, the law permits rectification of errors and omissions only at the initial stages of Forms GSTR-1 and GSTR-3, but in the specified manner. It is a different dispensation provided than the one in pre-GST period, which did not have the provision of auto-populated records and entries.50. Suffice it to conclude that the challenge to the impugned Circular No. 26/26/2017-GST dated 29.12.2017, is unsustainable for the reasons noted hitherto. We hold that stipulations in the stated Circular including in paragraph 4 thereof, are consistent with the provisions of the 2017 Acts and the Rules framed thereunder. Having said that, it must follow that there is no necessity of reading down paragraph 4 of the impugned Circular as has been done by the High Court vide impugned judgment. In any case, the direction issued by the High Court being in the nature of issuing writ of mandamus to allow the writ petitioner to rectify Form GSTR-3B for the period - July to September 2017, in the teeth of express statutory dispensation, cannot be sustained.51. No other issue has been dealt with by the High Court except to read down of the stated Circular, which as aforesaid, is wholly unnecessary.
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Gujarat Pottery Works Vs. B. P. Sood, Controller Of Mining Leases For India & Ors | persons, viz., the lessors and the lessees, differently. The contention is not open to the appellant in view of Art. 31A (1) (e). Further, the modifications have not been made to benefit the owners. They have been made in the public interest. It is only incidental that the lessors may get some advantage. It may be mentioned here that the lessors too were not agreeable to the proposed modifications and had raised objections before the Controller.29. It has also been contended that the 1956 rules were ultra vires the 1948 Act and, therefore, could not continue after the enactment of the 1957 Act as only valid rules could continue under S. 29 of the 1957 Act. Even if the rules were not consistent with the provisions of the 1948 Act and were therefore, void, we do not agree that they could not have continued after the enforcement of the 1957 Act. Section 29 reads"All rules made or purporting to have been made under the Mines and Minerals (Regulation and Development) Act, 1948, shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue in force unless and until they are superseded by any rules made under this Act."The effect of this section is that the rules which were made or purported to have been made under the 1948 Act in respect of matters for which rules could be made under the 1957 Act would be deemed to have been made under the 1957 Act as if that Act had been in force on the date on which such rules were made and would continue in force. The Act of 1957 in a way is deemed to have been in force when the modification rules were framed in 1956. The 1956 rules would be deemed to be framed under the 1957 Act and, therefore, their validity and continuity depends on the provisions of the 1957 Act and not of the 1948 Act.30. In this connection we may refer to the case reported as Abdul Majid v. P. R. Nayak, AIR 1951 Bom 440 . In that case S. 58 of Act XXXI of 1950 repealed Ordinance No. XXVII of 1948 and provided as follows:"The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken."31. Section 58 was construed thus:"The language used in S. 58 is both striking and significant. It does not merely provide that the orders passed under the Ordinance shall be deemed to be orders passed under the Act but it provides that the orders passed under the Ordinance shall be deemed to be orders under this Act as if this Act were in force on the day on which certain things were done or action was taken. Therefore, the object of this section is, as it were, to antedate this Act so as to bring it into force on the day on which a particular order was passed which is being challenged. In other words, the validity of an order its to be judged not with reference to the Ordinance under which it was passed, but with reference to the Act subsequently passed by Parliament."The rules have not been challenged to be ultra vires the 1957 Act in the instant case.32. It follows that the Controller was competent to modify the terms of the lease in favour of the appellant in order to bring it into conformity with the provisions of the 1957 Act and the rules made under S. 13 thereof.33. The only other question to be dealt with now is whether the Controller was justified in limiting the period of the lease to 25 years from December 2, 1939. Sub-s. (1) of S. 8 of the 1957 Act reads:"The period for which a mining lease may be granted shall not:-(a) in the case of coal, iron ore or bauxite exceed thirty years; and(b) in the case of any other mineral, exceed twenty years."The lease in suit is for excavating white clay and, therefore, a mining lease for this purpose is not to exceed 20 years. The question raised is that this period of 20 years for the purpose of the lease to be modified should run from the date the 1957 Act came into force and not from the original date of the lease.34. We agree with this contention. The period of the lease is to be brought in conformity with the provisions of the Act for future and the period for which a lease can be granted is not to exceed 20 years. The Act is concerned for the regulation of mines subsequent to its enactment and has nothing to take into consideration with what has taken place earlier. As a new lease is granted after the enforcement of the Act and can run upto 20 years, there is no reason why the term of an existing lease for mining be not so modified as to make it run upto 20 years after the enforcement of the Act.35. We therefore accept the contention for the appellant and hold that the Controller was in error in limiting the period of the lease to 25 years from December 2, 1939. The period of the lease could be limited to a period of 20 years commencing from June 1, 1958, the date notified as the date on which the 1957 Act came into force.36. | 1[ds]11. We are, therefore, of opinion that the lease in favour of Jagmal was really granted in December 1939 and that the execution of the lease in November 1951 was only to give a formal shape to the lease granted much earlier. The lease in suit, therefore, is a lease which comes within the expression existing mining lease within R. 2 (c) of the 1956 rules.Rule 9 provides for the payment of compensation to the lessee where the area of an existing mining lease is reduced, the amount of compensation being determined in he manner and in accordance with the principles set out in R. 10.Clause (ii) of sub-r. (2) of R. 10 provides that in determining the compensation payable under the rule, the Controller and the tribunal will have regard to the fact that no compensation shall be payable in respect of the reduction of the period of the lease or any modification in the amount of royalty. It is, therefore, that no compensation had been allowed or had been paid to the appellant for the modification in his lease with respect to the reduction of the period of the lease from perpetuity to 25 years and the royalty being payable in accordance with the provisions of the Act.The expression to win interpreted in the English cases was in respect of the context of the expression used in certain leases. The expression winning in a Constitutional provision like Art 31A (1) (e) should be given a wider meaning as the Constitution-makers would be using it to cover cases which deal with the obtaining of minerals and in that case that wider meaning would be to get or extract the mineral from the mine. The object of the Constitutional provision was to make the law providing for the extinguishment or modification of a lease, etc, in connection with mineral rights immune from the provisions of Arts. 14, 19 and 31. There could be no logical reason for not to cover the leases which allowed the working of the mines after the minerals in the mines had been won, in the narrow sense, i.e., the making of such arrangements which would allow the working of the mine. Modifying the provisions of any lease merely for making arrangements for the working of the mine could not be effective in making the law free from the requirements of the various minerals in the public interest. Modification of the leases governing the working of the mines could be necessary for the public interest. Section 2 of both the 1948 and the 1957 Acts declared that it was expedient in the public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent thereinafter provided.18. We are, therefore, of opinion that the expression winning in Art. 31A (1) (e) be construed to mean getting or extracting minerals from the mines and other incidentalthe context of the Acts and Rules, the Legislature or the rule-making authority had to use all possible expressions for the purposes of the mining leases so that all conceivable types of mining leases could be covered by the provisions of the enactment and the rules. Mining lease, according to S. 3, C1. (d) of the 1948 Act, means a lease granted for the purpose of searching for, winning, working, getting, making merchantable, carrying away or disposing of minerals or for the purposes connected therewith and includes an exploring or a prospecting license. The definition is very comprehensive and is with the object indicated earlier.20. It is significant to notice that the expression mine, according to C1. (b) of S 3, means any excavation for the purpose of searching for or obtaining minerals. Here the word obtain is used to cover the various processes necessary to get the mineral and would include the processes covered by the expressions winning, working, getting, etc.21.Mining lease, according to R. 3 (i) of the 1949 rules, means a lease to mine, quarry, bore, dig and search for, win, work and carry away any mineral specified therein. This definition of the mining lease does not cover all the purposes mentioned in S. 3 (d) of the 1948 Act. The definition deals with such matters which are covered by the rules, as a mining lease is defined for the purposes of the rules.22. Rule 41 (1) (ii) of the 1949 rules readsany mineral not specified in the lease is discovered in the leased area he shall not win and dispose of such mineral without obtaining a leaseis clear that the word win here includes the getting of the mineral as it is only thereafter that the lessee can dispose of it.23. Section 3 (c) of the 1957 Act defines mining lease to mean a lease granted for the purpose of undertaking mining operations and includes a sub-lease granted for mining operations.24. It follows that the various definitions in the Act or in the rules referred to above are for a limited purpose and that the word winning or win does not always have the same content, and that, therefore, they cannot be any guide for construing the word winning in the Constitutional provision of Art. 31A (1) (e).25. We, therefore, hold that the lease in suit is a lease for the purpose of winning coal and comes within Art. 31A (1) (e) of the Constitution and that, therefore, the rules for the modification of any rights acquiring under this lease cannot be deemed to be void on the ground that they take away the rights conferred by Arts. 14, 19 or 31 of the Constitution.Besides these entries, Entry No. 54 of List I was Regulation of mines and mineral development to the extent to which such regulation and development under the control of the union is declared by Parliament by law to be expedient in the public interest. The 1956 rules were made in connection with the regulation of mines and for the development of minerals and the Central Legislature was competent to provide for the making of such rules by the 1948 Act. The rules do not come within the field of acquisition and requisitioning of property. We do not consider this contention for the appellant to beif the rules were not consistent with the provisions of the 1948 Act and were therefore, void, we do not agree that they could not have continued after the enforcement of the 1957 Act. Section 29rules made or purporting to have been made under the Mines and Minerals (Regulation and Development) Act, 1948, shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue in force unless and until they are superseded by any rules made under thiseffect of this section is that the rules which were made or purported to have been made under the 1948 Act in respect of matters for which rules could be made under the 1957 Act would be deemed to have been made under the 1957 Act as if that Act had been in force on the date on which such rules were made and would continue in force. The Act of 1957 in a way is deemed to have been in force when the modification rules were framed in 1956. The 1956 rules would be deemed to be framed under the 1957 Act and, therefore, their validity and continuity depends on the provisions of the 1957 Act and not of the 1948 Act.We agree with this contention. The period of the lease is to be brought in conformity with the provisions of the Act for future and the period for which a lease can be granted is not to exceed 20 years. The Act is concerned for the regulation of mines subsequent to its enactment and has nothing to take into consideration with what has taken place earlier. As a new lease is granted after the enforcement of the Act and can run upto 20 years, there is no reason why the term of an existing lease for mining be not so modified as to make it run upto 20 years after the enforcement of the Act.We therefore accept the contention for the appellant and hold that the Controller was in error in limiting the period of the lease to 25 years from December 2, 1939. The period of the lease could be limited to a period of 20 years commencing from June 1, 1958, the date notified as the date on which the 1957 Act came into force. | 1 | 4,349 | 1,598 | ### 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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persons, viz., the lessors and the lessees, differently. The contention is not open to the appellant in view of Art. 31A (1) (e). Further, the modifications have not been made to benefit the owners. They have been made in the public interest. It is only incidental that the lessors may get some advantage. It may be mentioned here that the lessors too were not agreeable to the proposed modifications and had raised objections before the Controller.29. It has also been contended that the 1956 rules were ultra vires the 1948 Act and, therefore, could not continue after the enactment of the 1957 Act as only valid rules could continue under S. 29 of the 1957 Act. Even if the rules were not consistent with the provisions of the 1948 Act and were therefore, void, we do not agree that they could not have continued after the enforcement of the 1957 Act. Section 29 reads"All rules made or purporting to have been made under the Mines and Minerals (Regulation and Development) Act, 1948, shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue in force unless and until they are superseded by any rules made under this Act."The effect of this section is that the rules which were made or purported to have been made under the 1948 Act in respect of matters for which rules could be made under the 1957 Act would be deemed to have been made under the 1957 Act as if that Act had been in force on the date on which such rules were made and would continue in force. The Act of 1957 in a way is deemed to have been in force when the modification rules were framed in 1956. The 1956 rules would be deemed to be framed under the 1957 Act and, therefore, their validity and continuity depends on the provisions of the 1957 Act and not of the 1948 Act.30. In this connection we may refer to the case reported as Abdul Majid v. P. R. Nayak, AIR 1951 Bom 440 . In that case S. 58 of Act XXXI of 1950 repealed Ordinance No. XXVII of 1948 and provided as follows:"The repeal by this Act of the Administration of Evacuee Property Ordinance, 1949 (XXVII of 1949) shall not affect the previous operation thereof, and subject thereto, anything done or any action taken in the exercise of any power conferred by or under that Ordinance shall be deemed to have been done or taken in the exercise of the powers conferred by or under this Act, as if this Act were in force on the day on which such thing was done or action was taken."31. Section 58 was construed thus:"The language used in S. 58 is both striking and significant. It does not merely provide that the orders passed under the Ordinance shall be deemed to be orders passed under the Act but it provides that the orders passed under the Ordinance shall be deemed to be orders under this Act as if this Act were in force on the day on which certain things were done or action was taken. Therefore, the object of this section is, as it were, to antedate this Act so as to bring it into force on the day on which a particular order was passed which is being challenged. In other words, the validity of an order its to be judged not with reference to the Ordinance under which it was passed, but with reference to the Act subsequently passed by Parliament."The rules have not been challenged to be ultra vires the 1957 Act in the instant case.32. It follows that the Controller was competent to modify the terms of the lease in favour of the appellant in order to bring it into conformity with the provisions of the 1957 Act and the rules made under S. 13 thereof.33. The only other question to be dealt with now is whether the Controller was justified in limiting the period of the lease to 25 years from December 2, 1939. Sub-s. (1) of S. 8 of the 1957 Act reads:"The period for which a mining lease may be granted shall not:-(a) in the case of coal, iron ore or bauxite exceed thirty years; and(b) in the case of any other mineral, exceed twenty years."The lease in suit is for excavating white clay and, therefore, a mining lease for this purpose is not to exceed 20 years. The question raised is that this period of 20 years for the purpose of the lease to be modified should run from the date the 1957 Act came into force and not from the original date of the lease.34. We agree with this contention. The period of the lease is to be brought in conformity with the provisions of the Act for future and the period for which a lease can be granted is not to exceed 20 years. The Act is concerned for the regulation of mines subsequent to its enactment and has nothing to take into consideration with what has taken place earlier. As a new lease is granted after the enforcement of the Act and can run upto 20 years, there is no reason why the term of an existing lease for mining be not so modified as to make it run upto 20 years after the enforcement of the Act.35. We therefore accept the contention for the appellant and hold that the Controller was in error in limiting the period of the lease to 25 years from December 2, 1939. The period of the lease could be limited to a period of 20 years commencing from June 1, 1958, the date notified as the date on which the 1957 Act came into force.36.
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to the extent thereinafter provided.18. We are, therefore, of opinion that the expression winning in Art. 31A (1) (e) be construed to mean getting or extracting minerals from the mines and other incidentalthe context of the Acts and Rules, the Legislature or the rule-making authority had to use all possible expressions for the purposes of the mining leases so that all conceivable types of mining leases could be covered by the provisions of the enactment and the rules. Mining lease, according to S. 3, C1. (d) of the 1948 Act, means a lease granted for the purpose of searching for, winning, working, getting, making merchantable, carrying away or disposing of minerals or for the purposes connected therewith and includes an exploring or a prospecting license. The definition is very comprehensive and is with the object indicated earlier.20. It is significant to notice that the expression mine, according to C1. (b) of S 3, means any excavation for the purpose of searching for or obtaining minerals. Here the word obtain is used to cover the various processes necessary to get the mineral and would include the processes covered by the expressions winning, working, getting, etc.21.Mining lease, according to R. 3 (i) of the 1949 rules, means a lease to mine, quarry, bore, dig and search for, win, work and carry away any mineral specified therein. This definition of the mining lease does not cover all the purposes mentioned in S. 3 (d) of the 1948 Act. The definition deals with such matters which are covered by the rules, as a mining lease is defined for the purposes of the rules.22. Rule 41 (1) (ii) of the 1949 rules readsany mineral not specified in the lease is discovered in the leased area he shall not win and dispose of such mineral without obtaining a leaseis clear that the word win here includes the getting of the mineral as it is only thereafter that the lessee can dispose of it.23. Section 3 (c) of the 1957 Act defines mining lease to mean a lease granted for the purpose of undertaking mining operations and includes a sub-lease granted for mining operations.24. It follows that the various definitions in the Act or in the rules referred to above are for a limited purpose and that the word winning or win does not always have the same content, and that, therefore, they cannot be any guide for construing the word winning in the Constitutional provision of Art. 31A (1) (e).25. We, therefore, hold that the lease in suit is a lease for the purpose of winning coal and comes within Art. 31A (1) (e) of the Constitution and that, therefore, the rules for the modification of any rights acquiring under this lease cannot be deemed to be void on the ground that they take away the rights conferred by Arts. 14, 19 or 31 of the Constitution.Besides these entries, Entry No. 54 of List I was Regulation of mines and mineral development to the extent to which such regulation and development under the control of the union is declared by Parliament by law to be expedient in the public interest. The 1956 rules were made in connection with the regulation of mines and for the development of minerals and the Central Legislature was competent to provide for the making of such rules by the 1948 Act. The rules do not come within the field of acquisition and requisitioning of property. We do not consider this contention for the appellant to beif the rules were not consistent with the provisions of the 1948 Act and were therefore, void, we do not agree that they could not have continued after the enforcement of the 1957 Act. Section 29rules made or purporting to have been made under the Mines and Minerals (Regulation and Development) Act, 1948, shall, in so far as they relate to matters for which provision is made in this Act and are not inconsistent therewith, be deemed to have been made under this Act as if this Act had been in force on the date on which such rules were made and shall continue in force unless and until they are superseded by any rules made under thiseffect of this section is that the rules which were made or purported to have been made under the 1948 Act in respect of matters for which rules could be made under the 1957 Act would be deemed to have been made under the 1957 Act as if that Act had been in force on the date on which such rules were made and would continue in force. The Act of 1957 in a way is deemed to have been in force when the modification rules were framed in 1956. The 1956 rules would be deemed to be framed under the 1957 Act and, therefore, their validity and continuity depends on the provisions of the 1957 Act and not of the 1948 Act.We agree with this contention. The period of the lease is to be brought in conformity with the provisions of the Act for future and the period for which a lease can be granted is not to exceed 20 years. The Act is concerned for the regulation of mines subsequent to its enactment and has nothing to take into consideration with what has taken place earlier. As a new lease is granted after the enforcement of the Act and can run upto 20 years, there is no reason why the term of an existing lease for mining be not so modified as to make it run upto 20 years after the enforcement of the Act.We therefore accept the contention for the appellant and hold that the Controller was in error in limiting the period of the lease to 25 years from December 2, 1939. The period of the lease could be limited to a period of 20 years commencing from June 1, 1958, the date notified as the date on which the 1957 Act came into force.
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Karnataka Electricity Board Vs. Gulam Mohiuddin | the Resolutions and holding that the respondent is exempted from passing the S.A.S. examination before qualifying for the promotion. Before referring to the two Resolutions the relevant provisions of the law and Regulations made thereunder may be referred to. The Electricity (Supply) Act, 1948, by section 79 empowers the Board to make Regulations not inconsistent with the Act and the rules made thereunder to provide for all or any of the matters referred to in clauses (a) to (k) of the section, Sub-clause (c) empowers the Board to make Regulations regarding the duties of officers and servants of the Board and their salaries, allowances and other conditions of service. By virtue of the powers conferred on the Board it framed Mysore State Electricity Board Recruitment and Promotion of Employees of .the Board Regulation, 1960. The method of recruitment prescribed for promotion to Accounts Superintendents is prescribed in Chapter V of Annexure-2. The method of recruitment is by promotion from the cadre of I Grade Clerks on the basis of seniority-cum-merit, The minimum qualification prescribed is that the candidate ought to have passed S.A.S. examination Part I and Part II. This provision which was enacted in 1960 continued to be in force during the relevant time. If this Regulation is applicable, the respondents plea has to be rejected as it is incumbent on him to pass the S.A.S. examination. The Resolution of the Board relied on by the respondent is 19th May, 1969 and the material paragraph runs as follows:--"It is hereby directed that the candidates appointed to Government/Board Service for the first time after the date of States Re-organisation i.e., 1st November 1956 (as they are not allottees) should pass the De- partmental Examinations and Kannada Language Tests for purposes of earning increments and for promotion."6. The Resolution requires the passing of the examination and Kannada language test for the purpose of earning increments and for promotion for candidates appointed after/st November, 1956. But as it is not made applicable to the allottees, it is contended that the allottees are by implication exempted from passing the Departmental Examination I and Kannada language test. This contention cannot be accepted for the Resolution is si lent regarding the allottees and is not made applicable to them. It is not possible to infer from the Resolution that the allottees are exempted from passing the Departmental Examination and the Kannada l anguage test. the Resolution was passed by the Board in pursuance of certain proceedings of the Government referred to in the Resolution itself. Paragraph 2 of the Resolution reads thus:"Approval is accorded for the adoption of the Government Order Nos. (1) GAD 123 SSH 65 dated 21-11-1966 (2) GAD 2 SSR 67 dated 3-8-1957 and (3) GAD 72 SSR 67 dated 20-7- 1968."7. The three Government orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kannada language test as a consequence of the judgment of the High Court of Mysore and the Supreme Court. The orders specifically states that unless. in the Recruitment Rules relating to the service concerned Depart mental Examination had been incorporated and prescribed and unless it is clearly specified for what purpose the tests are prescribed viz., whether for increments or promotions, the passing of Departmental tests cannot be legally insisted upon for grant of increments or for according promotion to higher posts. The three Government orders make it clear that the relaxation of the rule relating to passing of the Departmental Examinations and Kannada language test is only as regards services where the rules do not specifically require the passing of the examinations and the language test. These G.O.s do not apply in the present case as the Regulations framed by the Board under section 79(c) specifi cally presc ribe the passing of the S.A.S. test. We are unable to construe the Resolution dated 19th May, 1969 as exempting the allottees from passing the test. In any event the plea of the respondent will have to fail on the ground that the Regulations framed under section 79(c) of the Board requiting the passing of the examination was not relaxed by amending the Regulations. The passing of the Resolution by the Board cannot have the effect of modifying a Regulation which was passed by the Board in the exercise of the powers conferred by the statute. Apart from this circumstance by a subsequent Resolution the Board itself considered the question in all its aspects and resolved that passing of the S.A.S. examination for promotion to the cadre of Accounts Superintendents as before be insisted. Whatever might have been the purport of the Resolution dated 19th May, 1969, the Board by a subsequent Resolution had resolved on insisting on the passing of the examination. The High Court found that the later Resolution did not affect the earlier Resolution on the ground that the subsequent Resolution did not make any reference to the earlier Resolution and that there is no reference to the allottees at all. Relying on the words "the passing of the S.A.S. Examination for-promotion to the cadre of Accounts Superintendents as before be insisted" the court found that it would .mean that where the passing of the S.A.S. Examination was insisted prior to that Resolution in the same shall continue to be insisted in future al so, and if passing of the S.A.S. Examination was not insisted prior to that Resolution in the case of allottees for promotion to the cadre of Accounts Superintendents. The Resolution dated 5th January, 1970, cannot be understood as altering the position existing "as before". This reasoning is erroneous for, as pointed out by us the earlier Resolution was not intended to cover the case of allottees and merely because the allottees were excluded from the operation of the Resolution the inference that the allottees were exempted from the passing of the examination is not justified. Further before the Resolution there is nothing to indicate that the allottees were not required to pass the examination. | 1[ds]The three Government orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kannada language test as a consequence of the judgment of the High Court of Mysore and the Supreme Court. The orders specifically states that unless. in the Recruitment Rules relating to the service concerned Depart mental Examination had been incorporated and prescribed and unless it is clearly specified for what purpose the tests are prescribed viz., whether for increments or promotions, the passing of Departmental tests cannot be legally insisted upon for grant of increments or for according promotion to higher posts. The three Government orders make it clear that the relaxation of the rule relating to passing of the Departmental Examinations and Kannada language test is only as regards services where the rules do not specifically require the passing of the examinations and the language test. These G.O.s do not apply in the present case as the Regulations framed by the Board under section 79(c) specifi cally presc ribe the passing of the S.A.S. test. We are unable to construe the Resolution dated 19th May, 1969 as exempting the allottees from passing the test. In any event the plea of the respondent will have to fail on the ground that the Regulations framed under section 79(c) of the Board requiting the passing of the examination was not relaxed by amending the Regulations. The passing of the Resolution by the Board cannot have the effect of modifying a Regulation which was passed by the Board in the exercise of the powers conferred by the statute. Apart from this circumstance by a subsequent Resolution the Board itself considered the question in all its aspects and resolved that passing of the S.A.S. examination for promotion to the cadre of Accounts Superintendents as before be insisted. Whatever might have been the purport of the Resolution dated 19th May, 1969, the Board by a subsequent Resolution had resolved on insisting on the passing of the examination. The High Court found that the later Resolution did not affect the earlier Resolution on the ground that the subsequent Resolution did not make any reference to the earlier Resolution and that there is no reference to the allottees at all. Relying on the words "the passing of the S.A.S. Examination for-promotion to the cadre of Accounts Superintendents as before be insisted" the court found that it would .mean that where the passing of the S.A.S. Examination was insisted prior to that Resolution in the same shall continue to be insisted in future al so, and if passing of the S.A.S. Examination was not insisted prior to that Resolution in the case of allottees for promotion to the cadre of Accounts Superintendents. The Resolution dated 5th January, 1970, cannot be understood as altering the position existing "as before". This reasoning is erroneous for, as pointed out by us the earlier Resolution was not intended to cover the case of allottees and merely because the allottees were excluded from the operation of the Resolution the inference that the allottees were exempted from the passing of the examination is not justified. Further before the Resolution there is nothing to indicate that the allottees were not required to pass thecontention cannot be accepted for the Resolution is si lent regarding the allottees and is not made applicable to them. It is not possible to infer from the Resolution that the allottees are exempted from passing the Departmental Examination and the Kannada l anguage test. the Resolution was passed by the Board in pursuance of certain proceedings of the Government referred to in the Resolution itself. | 1 | 1,751 | 653 | ### Instruction:
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the Resolutions and holding that the respondent is exempted from passing the S.A.S. examination before qualifying for the promotion. Before referring to the two Resolutions the relevant provisions of the law and Regulations made thereunder may be referred to. The Electricity (Supply) Act, 1948, by section 79 empowers the Board to make Regulations not inconsistent with the Act and the rules made thereunder to provide for all or any of the matters referred to in clauses (a) to (k) of the section, Sub-clause (c) empowers the Board to make Regulations regarding the duties of officers and servants of the Board and their salaries, allowances and other conditions of service. By virtue of the powers conferred on the Board it framed Mysore State Electricity Board Recruitment and Promotion of Employees of .the Board Regulation, 1960. The method of recruitment prescribed for promotion to Accounts Superintendents is prescribed in Chapter V of Annexure-2. The method of recruitment is by promotion from the cadre of I Grade Clerks on the basis of seniority-cum-merit, The minimum qualification prescribed is that the candidate ought to have passed S.A.S. examination Part I and Part II. This provision which was enacted in 1960 continued to be in force during the relevant time. If this Regulation is applicable, the respondents plea has to be rejected as it is incumbent on him to pass the S.A.S. examination. The Resolution of the Board relied on by the respondent is 19th May, 1969 and the material paragraph runs as follows:--"It is hereby directed that the candidates appointed to Government/Board Service for the first time after the date of States Re-organisation i.e., 1st November 1956 (as they are not allottees) should pass the De- partmental Examinations and Kannada Language Tests for purposes of earning increments and for promotion."6. The Resolution requires the passing of the examination and Kannada language test for the purpose of earning increments and for promotion for candidates appointed after/st November, 1956. But as it is not made applicable to the allottees, it is contended that the allottees are by implication exempted from passing the Departmental Examination I and Kannada language test. This contention cannot be accepted for the Resolution is si lent regarding the allottees and is not made applicable to them. It is not possible to infer from the Resolution that the allottees are exempted from passing the Departmental Examination and the Kannada l anguage test. the Resolution was passed by the Board in pursuance of certain proceedings of the Government referred to in the Resolution itself. Paragraph 2 of the Resolution reads thus:"Approval is accorded for the adoption of the Government Order Nos. (1) GAD 123 SSH 65 dated 21-11-1966 (2) GAD 2 SSR 67 dated 3-8-1957 and (3) GAD 72 SSR 67 dated 20-7- 1968."7. The three Government orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kannada language test as a consequence of the judgment of the High Court of Mysore and the Supreme Court. The orders specifically states that unless. in the Recruitment Rules relating to the service concerned Depart mental Examination had been incorporated and prescribed and unless it is clearly specified for what purpose the tests are prescribed viz., whether for increments or promotions, the passing of Departmental tests cannot be legally insisted upon for grant of increments or for according promotion to higher posts. The three Government orders make it clear that the relaxation of the rule relating to passing of the Departmental Examinations and Kannada language test is only as regards services where the rules do not specifically require the passing of the examinations and the language test. These G.O.s do not apply in the present case as the Regulations framed by the Board under section 79(c) specifi cally presc ribe the passing of the S.A.S. test. We are unable to construe the Resolution dated 19th May, 1969 as exempting the allottees from passing the test. In any event the plea of the respondent will have to fail on the ground that the Regulations framed under section 79(c) of the Board requiting the passing of the examination was not relaxed by amending the Regulations. The passing of the Resolution by the Board cannot have the effect of modifying a Regulation which was passed by the Board in the exercise of the powers conferred by the statute. Apart from this circumstance by a subsequent Resolution the Board itself considered the question in all its aspects and resolved that passing of the S.A.S. examination for promotion to the cadre of Accounts Superintendents as before be insisted. Whatever might have been the purport of the Resolution dated 19th May, 1969, the Board by a subsequent Resolution had resolved on insisting on the passing of the examination. The High Court found that the later Resolution did not affect the earlier Resolution on the ground that the subsequent Resolution did not make any reference to the earlier Resolution and that there is no reference to the allottees at all. Relying on the words "the passing of the S.A.S. Examination for-promotion to the cadre of Accounts Superintendents as before be insisted" the court found that it would .mean that where the passing of the S.A.S. Examination was insisted prior to that Resolution in the same shall continue to be insisted in future al so, and if passing of the S.A.S. Examination was not insisted prior to that Resolution in the case of allottees for promotion to the cadre of Accounts Superintendents. The Resolution dated 5th January, 1970, cannot be understood as altering the position existing "as before". This reasoning is erroneous for, as pointed out by us the earlier Resolution was not intended to cover the case of allottees and merely because the allottees were excluded from the operation of the Resolution the inference that the allottees were exempted from the passing of the examination is not justified. Further before the Resolution there is nothing to indicate that the allottees were not required to pass the examination.
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The three Government orders referred to in the Resolution relate to the requirement of passing of the Departmental Examination and Kannada language test as a consequence of the judgment of the High Court of Mysore and the Supreme Court. The orders specifically states that unless. in the Recruitment Rules relating to the service concerned Depart mental Examination had been incorporated and prescribed and unless it is clearly specified for what purpose the tests are prescribed viz., whether for increments or promotions, the passing of Departmental tests cannot be legally insisted upon for grant of increments or for according promotion to higher posts. The three Government orders make it clear that the relaxation of the rule relating to passing of the Departmental Examinations and Kannada language test is only as regards services where the rules do not specifically require the passing of the examinations and the language test. These G.O.s do not apply in the present case as the Regulations framed by the Board under section 79(c) specifi cally presc ribe the passing of the S.A.S. test. We are unable to construe the Resolution dated 19th May, 1969 as exempting the allottees from passing the test. In any event the plea of the respondent will have to fail on the ground that the Regulations framed under section 79(c) of the Board requiting the passing of the examination was not relaxed by amending the Regulations. The passing of the Resolution by the Board cannot have the effect of modifying a Regulation which was passed by the Board in the exercise of the powers conferred by the statute. Apart from this circumstance by a subsequent Resolution the Board itself considered the question in all its aspects and resolved that passing of the S.A.S. examination for promotion to the cadre of Accounts Superintendents as before be insisted. Whatever might have been the purport of the Resolution dated 19th May, 1969, the Board by a subsequent Resolution had resolved on insisting on the passing of the examination. The High Court found that the later Resolution did not affect the earlier Resolution on the ground that the subsequent Resolution did not make any reference to the earlier Resolution and that there is no reference to the allottees at all. Relying on the words "the passing of the S.A.S. Examination for-promotion to the cadre of Accounts Superintendents as before be insisted" the court found that it would .mean that where the passing of the S.A.S. Examination was insisted prior to that Resolution in the same shall continue to be insisted in future al so, and if passing of the S.A.S. Examination was not insisted prior to that Resolution in the case of allottees for promotion to the cadre of Accounts Superintendents. The Resolution dated 5th January, 1970, cannot be understood as altering the position existing "as before". This reasoning is erroneous for, as pointed out by us the earlier Resolution was not intended to cover the case of allottees and merely because the allottees were excluded from the operation of the Resolution the inference that the allottees were exempted from the passing of the examination is not justified. Further before the Resolution there is nothing to indicate that the allottees were not required to pass thecontention cannot be accepted for the Resolution is si lent regarding the allottees and is not made applicable to them. It is not possible to infer from the Resolution that the allottees are exempted from passing the Departmental Examination and the Kannada l anguage test. the Resolution was passed by the Board in pursuance of certain proceedings of the Government referred to in the Resolution itself.
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Mahesh Anantrai Pattani And Another Vs. The Commissioner Of Income-Tax, Bombay North, Ahmedabad | as gift". The word gift does not alter the nature of the payment. The Maharaja indeed made a gift, as he had stated over again; but this order quite clearly discloses that it was by way of remuneration for past services. The case, therefore, falls within the ruling of the Supreme Court reported in 1959 Supp (1) SCR 133 : (AIR 1959 SC 75 ) and is indistinguishable from it. In the earlier case of this Court, the person who gave the money did not even mention any past services; but this Court found, that because the recipient had taught him Vedanta philosophy, the payment was really in the nature of remuneration for past services.21. The facts in P. Krishna Menons case, 1959 Supp (1) SCR 133 : (AIR 1959 SC 75 ) were that the assessee was teaching his disciples Vedanta philosophy without any motive or intention of making a profit out of such activity. One J. H. Levy who used to go to Travancore from England at intervals attended his teachings. Levy had an account with Lloyds Bank at Bombay, and on December 31, 1944, Levy transferred the entire amount of Rs. 2,41,103-11-3 to the credit of an account which Levy got the assessee to open in his own name. Levy made further remittances and by August 19, 1951, had paid about Rs. 4,50,000. It was held by this Court that the assessee was carrying on a vocation. In deciding the question whether the amounts were assessable to tax, this Court observed as follows :-".... it seems to us that the present case is too plain to require any authority. The only point is, whether the moneys were received by the appellant by virtue of his vocation. Mr. Sastri contended that the facts showed that the payments were purely personal gifts. He drew our attention to the affidavit of Levy where it is stated all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason. But Levy also there said I have had the benefit of his teachings on Vedanta. It is important to remember however that the point is not what the donor thought he was doing but why the donee received it".Sarkar, J. then referred to the dictum of Collins, M. R. in Herbert v. McQuade, (1902) 2 KB 631 which may be quoted here :"Now that judgment, whether or not the particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income-tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it. That seems to me to be the test; and if we once get to this -- that the money has come to or accrued to a person by virtue of his office - it seems to me that the liability to income-tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it."The learned Judge also referred to the observations of Rowlatt, J. in (1926) 1 KB 588 and of Viscount Cave, L. C. in Seymour v. Reed, (1927) AC 554 and observed that the real question was, is the payment in the nature of a personal gift or is it a remuneration?, and quoted as the reply the words of the Lord Chancellor - "If the latter, it is subject to the tax; if the former, it is not." Sarkar, J. also referred to the observations of Lord Ashbourne in Blakiston v. Cooper, 1909 AC 104 which were :"It was suggested that the offerings were made as personal gifts to the Vicar as marks of esteem and respect. Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar and that they formed part of the profits accruing by reason of his office.",and concluded as follows :"We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non. The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case, we are not concerned in this case with that payment. We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching. And one must not forget that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material. If the first payment was too big to have been paid for the teaching received, it was too big to have been given purely by way of gift."22. In my opinion, the case of this Court concludes the matter, and the Tribunal was within its rights in accepting one piece of evidence in preference to another, and the finding on the evidentiary value of the letter of the Maharaja was a matter essentially for the Tribunal to decide finally. I thus agree with the High Court in the answer which it gave, in agreement on facts with the Tribunal, and the reasons for which the answer was given.23. I would, therefore, dismiss the appeal with costs.24. Order: | 1[ds]There is no mention in the document of December 1950 of any services rendered to the Maharaja and it does not seem to have been considered by the Tribunal as to why the Maharaja should make out of his personal account the gift of such a large amount for something which was not done for the Maharaja specifically, particularly when services to the State and to the Maharaja and his family had already been well compensated. This lends support to the submission of the appellants that the amount was paid merely as a gift in token of Maharajas affection and regard for the assessee.In our opinion the sum of Rs. 5,00,000/- was not paid to the assessee in token of appreciation for the services rendered as a Dewan of Bhavnagar State but as a personal gift for the personal qualities of the assessee and as a token of personal esteem.17. The appeal is therefore allowed and the order of the High Court set aside and the reference is answered against the Commissioner of Income-tax. The appellants will have their costs throughout. | 1 | 6,506 | 191 | ### 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:
as gift". The word gift does not alter the nature of the payment. The Maharaja indeed made a gift, as he had stated over again; but this order quite clearly discloses that it was by way of remuneration for past services. The case, therefore, falls within the ruling of the Supreme Court reported in 1959 Supp (1) SCR 133 : (AIR 1959 SC 75 ) and is indistinguishable from it. In the earlier case of this Court, the person who gave the money did not even mention any past services; but this Court found, that because the recipient had taught him Vedanta philosophy, the payment was really in the nature of remuneration for past services.21. The facts in P. Krishna Menons case, 1959 Supp (1) SCR 133 : (AIR 1959 SC 75 ) were that the assessee was teaching his disciples Vedanta philosophy without any motive or intention of making a profit out of such activity. One J. H. Levy who used to go to Travancore from England at intervals attended his teachings. Levy had an account with Lloyds Bank at Bombay, and on December 31, 1944, Levy transferred the entire amount of Rs. 2,41,103-11-3 to the credit of an account which Levy got the assessee to open in his own name. Levy made further remittances and by August 19, 1951, had paid about Rs. 4,50,000. It was held by this Court that the assessee was carrying on a vocation. In deciding the question whether the amounts were assessable to tax, this Court observed as follows :-".... it seems to us that the present case is too plain to require any authority. The only point is, whether the moneys were received by the appellant by virtue of his vocation. Mr. Sastri contended that the facts showed that the payments were purely personal gifts. He drew our attention to the affidavit of Levy where it is stated all sums of money paid into his account by me have been gifts to mark my esteem and affection for him and for no other reason. But Levy also there said I have had the benefit of his teachings on Vedanta. It is important to remember however that the point is not what the donor thought he was doing but why the donee received it".Sarkar, J. then referred to the dictum of Collins, M. R. in Herbert v. McQuade, (1902) 2 KB 631 which may be quoted here :"Now that judgment, whether or not the particular facts justified it, is certainly an affirmation of a principle of law that a payment may be liable to income-tax although it is voluntary on the part of the persons who made it, and that the test is whether, from the standpoint of the person who receives it, it accrues to him in virtue of his office; if it does, it does not matter whether it was voluntary or whether it was compulsory on the part of the persons who paid it. That seems to me to be the test; and if we once get to this -- that the money has come to or accrued to a person by virtue of his office - it seems to me that the liability to income-tax is not negatived merely by reason of the fact that there was no legal obligation on the part of the persons who contributed the money to pay it."The learned Judge also referred to the observations of Rowlatt, J. in (1926) 1 KB 588 and of Viscount Cave, L. C. in Seymour v. Reed, (1927) AC 554 and observed that the real question was, is the payment in the nature of a personal gift or is it a remuneration?, and quoted as the reply the words of the Lord Chancellor - "If the latter, it is subject to the tax; if the former, it is not." Sarkar, J. also referred to the observations of Lord Ashbourne in Blakiston v. Cooper, 1909 AC 104 which were :"It was suggested that the offerings were made as personal gifts to the Vicar as marks of esteem and respect. Such reasons no doubt played their part in obtaining and increasing the amount of the offerings, but I cannot doubt that they were given to the vicar as vicar and that they formed part of the profits accruing by reason of his office.",and concluded as follows :"We have no doubt in this case that the imparting of the teaching was the causa causans of the making of the gift; it was not merely a causa sine qua non. The payments were repeated and came with the same regularity as Levys visits to the appellant for receiving instructions in Vedanta. We do not feel impressed by Mr. Sastris contention that the first payment of Rs. 2,41,103-11-3 was too large a sum to be paid as consideration. In any case, we are not concerned in this case with that payment. We are concerned with payments which are of much smaller amounts and as to which it has not been said that they were too large to be a consideration for the teaching. And one must not forget that these are cases of voluntary payments and the question of the appraisement of the value of the teaching received in terms of money is not very material. If the first payment was too big to have been paid for the teaching received, it was too big to have been given purely by way of gift."22. In my opinion, the case of this Court concludes the matter, and the Tribunal was within its rights in accepting one piece of evidence in preference to another, and the finding on the evidentiary value of the letter of the Maharaja was a matter essentially for the Tribunal to decide finally. I thus agree with the High Court in the answer which it gave, in agreement on facts with the Tribunal, and the reasons for which the answer was given.23. I would, therefore, dismiss the appeal with costs.24. Order:
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1
### Explanation:
There is no mention in the document of December 1950 of any services rendered to the Maharaja and it does not seem to have been considered by the Tribunal as to why the Maharaja should make out of his personal account the gift of such a large amount for something which was not done for the Maharaja specifically, particularly when services to the State and to the Maharaja and his family had already been well compensated. This lends support to the submission of the appellants that the amount was paid merely as a gift in token of Maharajas affection and regard for the assessee.In our opinion the sum of Rs. 5,00,000/- was not paid to the assessee in token of appreciation for the services rendered as a Dewan of Bhavnagar State but as a personal gift for the personal qualities of the assessee and as a token of personal esteem.17. The appeal is therefore allowed and the order of the High Court set aside and the reference is answered against the Commissioner of Income-tax. The appellants will have their costs throughout.
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Federal Bank Ltd Vs. Sagar Thomas | India under a Statute or the Central Government. Even if it was with the Central Government in place of the Reserve Bank of India it would not have made any difference, therefore, the argument based on the decision of All India Bank Employees Association (supra) does not advance the case of the respondent. It is only in case of mal-functioning of the company that occasion to exercise such powers arises to protect the interest of the depositors, shareholders or the company itself or to help the company to be out of the woods. In the times of normal functioning such occasions do not arise except for routine inspections etc. with a view to see that things are moved smoothly in keeping with fiscal policies in general. 29. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, may be banking manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, are such which do have impact on the economy of the country in general. But such activities cannot be classified one falling in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the government and transferred to the appellant company. For the sake of argument even if it may be assumed that one or the other test as provided in the case of Ajay Hasia (supra) may be attracted that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas (supra) quoted earlier would also be relevant. 30. We may now consider the two decisions i.e. Andi Mukta (supra) and the U.P. State Co-operative Land Development Bank Ltd. (supra) upon which much reliance has been placed on behalf of the respondents to show that a writ would lie against the appellant company. So far the decision in the case of U.P. State Co-operative Land Development Bank Ltd. (supra) is concerned, it stands entirely on a different footing and we have elaborately discussed it earlier. 31. The other case which has been heavily relied upon is Andi Mukta (supra). It is no doubt held that a Mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the university and was governed by the Ordinances, casting certain obligations which it owed to that petitioner. But it is not the case here. Our attention has been drawn by the learned counsel for the appellant to paragraphs 12, 13 and 21 of the decision (Andi Mukta) to indicate that even according to this case no writ would lie against he private body except where it has some obligation to discharge which is statutory or of public character. 32. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiring authority. 33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondents service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed. | 1[ds]32. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiringour view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondents service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be | 1 | 12,029 | 428 | ### 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:
India under a Statute or the Central Government. Even if it was with the Central Government in place of the Reserve Bank of India it would not have made any difference, therefore, the argument based on the decision of All India Bank Employees Association (supra) does not advance the case of the respondent. It is only in case of mal-functioning of the company that occasion to exercise such powers arises to protect the interest of the depositors, shareholders or the company itself or to help the company to be out of the woods. In the times of normal functioning such occasions do not arise except for routine inspections etc. with a view to see that things are moved smoothly in keeping with fiscal policies in general. 29. There are a number of such companies carrying on the profession of banking. There is nothing which can be said to be close to the governmental functions. It is an old profession in one form or the other carried on by individuals or by a group of them. Losses incurred in the business are theirs as well as the profits. Any business or commercial activity, may be banking manufacturing units or related to any other kind of business generating resources, employment, production and resulting in circulation of money are no doubt, are such which do have impact on the economy of the country in general. But such activities cannot be classified one falling in the category of discharging duties, functions of public nature. Thus the case does not fall in the fifth category of cases enumerated in the case of Ajay Hasia (supra). Again we find that the activity which is carried on by the appellant is not one which may have been earlier carried on by the government and transferred to the appellant company. For the sake of argument even if it may be assumed that one or the other test as provided in the case of Ajay Hasia (supra) may be attracted that by itself would not be sufficient to hold that it is an agency of the State or a company carrying on the functions of public nature. In this connection, observations made in the case of Pradeep Kumar Biswas (supra) quoted earlier would also be relevant. 30. We may now consider the two decisions i.e. Andi Mukta (supra) and the U.P. State Co-operative Land Development Bank Ltd. (supra) upon which much reliance has been placed on behalf of the respondents to show that a writ would lie against the appellant company. So far the decision in the case of U.P. State Co-operative Land Development Bank Ltd. (supra) is concerned, it stands entirely on a different footing and we have elaborately discussed it earlier. 31. The other case which has been heavily relied upon is Andi Mukta (supra). It is no doubt held that a Mandamus can be issued to any person or authority performing public duty, owing positive obligation to the affected party. The writ petition was held to be maintainable since the teacher whose services were terminated by the institution was affiliated to the university and was governed by the Ordinances, casting certain obligations which it owed to that petitioner. But it is not the case here. Our attention has been drawn by the learned counsel for the appellant to paragraphs 12, 13 and 21 of the decision (Andi Mukta) to indicate that even according to this case no writ would lie against he private body except where it has some obligation to discharge which is statutory or of public character. 32. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiring authority. 33. For the discussion held above, in our view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondents service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be allowed.
### Response:
1
### Explanation:
32. Merely because the Reserve Bank of India lays the banking policy in the interest of the banking system or in the interest of monetary stability or sound economic growth having due regard to the interest of the depositors etc. as provided under Section 5(c)(a) of the Banking Regulation Act does not mean that the private companies carrying on the business of or commercial activity of banking, discharge any public function or public duty. These are all regulatory measures applicable to those carrying on commercial activity in banking and these companies are to act according to these provisions failing which certain consequences follow as indicated in the Act itself. Provision regarding acquisition of a banking company by the Government, it may be pointed out that any private property can be acquired by the Government in public interest. It is now judicially accepted norm that private interest has to give way to the public interest. If a private property is acquired in public interest it does not mean that the party whose property is acquired is performing or discharging any function or duty of public character though it would be so for acquiringour view, a private company carrying on banking business as a scheduled bank, cannot be termed as an institution or company carrying on any statutory or public duty. A private body or a person may be amenable to writ jurisdiction only where it may become necessary to compel such body or association to enforce any statutory obligations or such obligations of public nature casting positive obligation upon it. We dont find such conditions are fulfilled in respect of a private company carrying on a commercial activity of banking. Merely regulatory provisions to ensure such activity carried on by private bodies work within a discipline, do not confer any such status upon the company nor puts any such obligation upon it which may be enforced through issue of a writ under Article 226 of the Constitution. Present is a case of disciplinary action being taken against its employee by the appellant Bank. Respondents service with the bank stands terminated. The action of the Bank was challenged by the respondent by filing a writ petition under Article 226 of the Constitution of India. The respondent is not trying to enforce any statutory duty on the part of the Bank. That being the position, the appeal deserves to be
|
E.V. Mathal Vs. The Subordinate Judge, Kottayam and Ors | if it had not expired, may be instituted, continued or enforced under the corresponding provisions of this Act."Reference in this connection may also be made to Section 4 of the Kerala Interpretation and General Clauses Act, 1125 (Act 7 of 1125):"4. Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."It was argued by Mr. Daphtary that Section 4 was not applicable because a different intention appeared from Section 34 (1) of the Act of 1965. We find ourselves unable to accept this contention.The proviso to Section 34 (1) lays down that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the corresponding provisions of the new Act. Mr. Daphtary tried to meet this by urging that Section 11 (4) of the Act of 1959 did not contain any corresponding provision. Sub-section (1) of Section 11 of the 1959 Act laid down that:"Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Act.Provided...................... "Sub-section (4) (i) of Section 11 however gave the landlord a right to apply for eviction and for an order directing him to be put in possession of the building."if the tenant has without the consent of the landlord transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so, or the landlord has not consented to such sub-letting;"We find ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Short Notes.Mr. Daphtary raised a further contention that under the express words of sub-section (1) of Section 11 of the Act of 1965 the operation of any other law including the Act of 1959 was excluded. We do not think that is the proper construction to be put on the words of sub-section (1) of Section 11 in view of Section 34 (1) of the same Act.4. Mr. Daphtary next argued that it was not open to the District Court to revise the order of the Subordinate Judge holding against sub-letting and thereby confirming the order of the Rent Controller on this point under Section 20 of the Act of 1965.The words of Section 20 however are much wider than those in Section 115 of the Code of Civil Procedure. Under Section 20 (1) the District Court is empowered to call for an examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and pass such order in reference thereto as it thinks fit. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction.In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 115 of the Code of Civil Procedure and we do not feel called upon to examine the question as to whether the revision was properly heard and disposed of by the District Court.5. Lastly, Mr. Daphtary argued that on the facts the Courts below should not have come to the conclusion that there was a sub-letting within the mischief of the Act. The buildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room. In our opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of sub-letting. | 0[ds]We find ourselves unable to accept this contention.The proviso to Section 34 (1) lays down that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the corresponding provisions of the new Act. Mr. Daphtary tried to meet this by urging that Section 11 (4) of the Act of 1959 did not contain any correspondingfind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Shortdo not think that is the proper construction to be put on the words of sub-section (1) of Section 11 in view of Section 34 (1) of the samethe words of this section we cannot hold that a revision is limited to a mere question of jurisdiction.In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 115 of the Code of Civil Procedure and we do not feel called upon to examine the question as to whether the revision was properly heard and disposed of by the Districtour opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive offind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to(1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Shortbuildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room.r opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as todoes not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of | 0 | 1,965 | 745 | ### Instruction:
Ascertain if the court will uphold (1) or dismiss (0) the appeal in the case proceeding, and then clarify this prediction by discussing critical sentences from the text.
### Input:
if it had not expired, may be instituted, continued or enforced under the corresponding provisions of this Act."Reference in this connection may also be made to Section 4 of the Kerala Interpretation and General Clauses Act, 1125 (Act 7 of 1125):"4. Where any Act repeals any enactment hitherto made or hereafter to be made, then, unless a different intention appears, the repeal shall not-(a) revive anything not in force or existing at the time at which the repeal takes effect; or(b) affect the previous operation of any enactment so repealed or anything duly done or suffered thereunder; or(c) affect any right, privilege, obligation or liability acquired, accrued or incurred under any enactment so repealed; or(d) affect any penalty, forfeiture or punishment incurred in respect of any offence committed against any enactment so repealed; or(e) affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment as aforesaid; and any such investigation, legal proceeding or remedy may be instituted, continued or enforced and any such penalty, forfeiture or punishment may be imposed as if the repealing Act had not been passed."It was argued by Mr. Daphtary that Section 4 was not applicable because a different intention appeared from Section 34 (1) of the Act of 1965. We find ourselves unable to accept this contention.The proviso to Section 34 (1) lays down that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the corresponding provisions of the new Act. Mr. Daphtary tried to meet this by urging that Section 11 (4) of the Act of 1959 did not contain any corresponding provision. Sub-section (1) of Section 11 of the 1959 Act laid down that:"Notwithstanding anything to the contrary contained in any other law or contract a tenant shall not be evicted, whether in execution of a decree or otherwise except in accordance with the provisions of this Act.Provided...................... "Sub-section (4) (i) of Section 11 however gave the landlord a right to apply for eviction and for an order directing him to be put in possession of the building."if the tenant has without the consent of the landlord transferred his right under the lease or sub-let the entire building or any portion thereof, if the lease does not confer on him any right to do so, or the landlord has not consented to such sub-letting;"We find ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Short Notes.Mr. Daphtary raised a further contention that under the express words of sub-section (1) of Section 11 of the Act of 1965 the operation of any other law including the Act of 1959 was excluded. We do not think that is the proper construction to be put on the words of sub-section (1) of Section 11 in view of Section 34 (1) of the same Act.4. Mr. Daphtary next argued that it was not open to the District Court to revise the order of the Subordinate Judge holding against sub-letting and thereby confirming the order of the Rent Controller on this point under Section 20 of the Act of 1965.The words of Section 20 however are much wider than those in Section 115 of the Code of Civil Procedure. Under Section 20 (1) the District Court is empowered to call for an examine the records relating to any order passed or proceedings taken under the Act for the purpose of satisfying itself as to the legality, regularity or propriety of such order or proceedings and pass such order in reference thereto as it thinks fit. On the words of this section we cannot hold that a revision is limited to a mere question of jurisdiction.In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 115 of the Code of Civil Procedure and we do not feel called upon to examine the question as to whether the revision was properly heard and disposed of by the District Court.5. Lastly, Mr. Daphtary argued that on the facts the Courts below should not have come to the conclusion that there was a sub-letting within the mischief of the Act. The buildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room. In our opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of sub-letting.
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We find ourselves unable to accept this contention.The proviso to Section 34 (1) lays down that a legal proceeding which could have been instituted, continued or enforced under the repealed Act of 1959 may be instituted under the corresponding provisions of the new Act. Mr. Daphtary tried to meet this by urging that Section 11 (4) of the Act of 1959 did not contain any correspondingfind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to sub-section (1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Shortdo not think that is the proper construction to be put on the words of sub-section (1) of Section 11 in view of Section 34 (1) of the samethe words of this section we cannot hold that a revision is limited to a mere question of jurisdiction.In our view the District Judge was empowered to consider whether on the evidence the finding of the Subordinate Judge was proper. In any event, the same was confirmed by the High Court in revision under Section 115 of the Code of Civil Procedure and we do not feel called upon to examine the question as to whether the revision was properly heard and disposed of by the Districtour opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as to sub-letting does not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive offind ourselves unable to accept Mr. Daphtarys argument that the above quoted provision of Section 11 of the Act of 1959 was not "a corresponding provision" within the meaning of the proviso to(1) of Section 34 of the Act of 1965. To correspond means to be in harmony with or be similar, analogous to". It does not mean to "be identical with" and therefore the relevant provisions of Section 34 (1) of the Act of 1965 must be held to be a provision corresponding to Section 11 (4) of the Act of 1959.Our attention was drawn to the short notes of a judgment of the Kerala High Court in O. P. No. 2653 of 1967 dated 4th October, 1967, as given in Short Notes to Part 1, The Kerala Law Times, 1968. We find ourselves unable to accept the reasoning as given in the said Shortbuildings were let out as a lodging house and the evidence showed that one of the rooms was in the occupation of a lawyer who had been there for years and had put up his name board outside the room. Besides the name board of the lawyer, there were the name boards of other persons and the lawyer paid rent on a daily basis. The lawyer had installed a telephone in his room.r opinion, there was sufficient evidence to hold that the lawyer was in exclusive possession of the room and although the rent was paid on a daily basis it was not a case of the grant of a licence.In any event, the finding as todoes not call for interference in this case seeing that the District Court and the High Court both accepted the evidence as conclusive of
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State Of Jharkhand Vs. Voltas Ltd. East Singhbhum | item does not come within List II or List III of the Seventh Schedule to the Constitution, then it can only be the Central legislature i.e. the Parliament which can levy tax either under List I or under the residual provision contained in Article 248 thereof. 9. Section 21 of the Bihar Sales Tax Act, as amended states: "Sec. 21. - Taxable Turnover - (1) For the purpose of this part the taxable turnover of a dealer shall be that part of his gross turnover which remains after deduction therefrom -(a)(i) in case of the works contract the amount of labour and any other charges in the manner and to the extent prescribed". 10. Rule 13A of the Bihar Sales Tax Rules which was also amended by a notification dated 1st February, 2000 read as follows: "Rule 13A. Deduction in case of works contract on account of labour charges. - [if the dealer fails to produce any account or the accounts produced are unreliable] deduction under sub-clause (i) of clause (a) of sub-section (1) of section 21 on account of labour charges in the case of works contract from gross turnover shall be equal to the following percentages." 11. The aforesaid provisions have been adopted by the State of Jharkhand vide notification dated 15.12.2000 and thus are applicable in the State of Jharkhand. 12. Interpretation of the amended Section 21(1) and the newly substituted Rule 13A fell for consideration of a Division Bench of the Patna High Court in the case of Larsen & Toubro Ltd. vs. State of Bihar 134 STC 354 . The Patna High Court in the said decision observed as under: "Rule 13A unfortunately does not talk of "any other charges". Rule 13A unfortunately does not take into consideration that under the Rules the deduction in relation to any other charges in the manner and to the extent were also to be prescribed. Rule 13A cannot be said to be an absolute follow-up legislation to sub-clause (i) of clause (a) of section 21(1). When the law provides that something is to be prescribed in the Rules then that thing must be prescribed in the Rules to make the provisions workable and constitutionally valid. In the matter of Gannon Dunkerley & Co. (1993) 88 STC 204 the Supreme Court observed that as sub-section (3) of section 5 and sub-rule (2) of rule 29 of the Rajasthan Sales Tax Act and the Rules were not providing for particular deductions, the same were invalid. In the present matter the constitutional provision of law says that particular deductions would be provided but unfortunately nothing is provided in relation to the other charges either in section 21 itself or in the rules framed in exercise of the powers conferred by section 58 of the Bihar Finance Act. In our considered opinion sub-clause (i) of clause (a) of section 21(1) read with rule 13A of the Rules did not make sub-clause (1) fully workable because the manner and extent of deduction relating to any other charges has not been provided prescribed by the State." 13. We fully agree with the view taken by the Patna High Court in the aforesaid decision. It is not merely the labour charges which are deductible from the value of the works contract, but all other charges/amounts also, except the value of the goods sold in execution of the works contract. This is because only the value of the goods sold can be taxed as sales tax. It may be mentioned that the respondent had initially only claimed deduction of labour charges, but that was in view of the understanding of the law at that time. The matter became clear only after the decision of this Court in Gannon Dunkerley & Co. vs. State of Rajasthan (supra).14. It may further be mentioned that the observations made by the Division Bench of the High Court about the rate of tax were unnecessary, and they are therefore set aside.15. We also agree with the view taken in the impugned judgment that the proceedings in question were beyond limitation. It appears that against three assessment orders for the period 1990-91, 1991-92 and 1992-93, the respondent preferred three appeals i.e. JUSTA 56/97-98, 57/97-98 and 58/97-98 before the Joint Commissioner, Commercial Taxes (Appeal), Jamshedpur Division, Jamshedpur. The appellate authority passed a common order on 31st August, 1998 and communicated the decision vide Memo No. 2177 dated 5th November, 1998 to the assessing authority and other officers. The assessing authority was directed to make a re-assessment. As per the proviso to Section 24 of the Bihar Finance Act, the assessing authority was supposed to complete and pass the re-assessment order pursuant to the remand by 5th November, 2000, two years from the date of communication of such order to the assessing authority. However, the assessment was not concluded and fresh assessment on remand was made on 27th November, 2004 i.e. after more than six years of communication of the said order. Hence, it was clearly time barred.16. From the records, it appears that the appellate order passed on 31st August, 1998 was communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998. The respondent obtained a certified copy of the same in January, 1999. Memo No. 204 dated 6th August, 2003, as referred to by the counsel for the State is the second time communication, which was only a reminder. 17. Thus, the appellate order having been communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998 for the purposes of limitation the period will start from 5th November, 1998 and will be complete on 5th November, 2000 i.e. two years from the date of communication of such order to the assessing authority. 18. We accordingly hold that the assessment order made after remand on 27th November, 2004 and the consequential demand of notice raised in pursuance of such order of re-assessment, all dated 29th November, 2004 are time-barred under Section 24 of the Bihar Finance Act.19. | 0[ds]13. We fully agree with the view taken by the Patna High Court in the aforesaid decision. It is not merely the labour charges which are deductible from the value of the works contract, but all other charges/amounts also, except the value of the goods sold in execution of the works contract. This is because only the value of the goods sold can be taxed as sales tax. It may be mentioned that the respondent had initially only claimed deduction of labour charges, but that was in view of the understanding of the law at that time. The matter became clear only after the decision of this Court in Gannon Dunkerley & Co. vs. State of Rajasthan (supra).14. It may further be mentioned that the observations made by the Division Bench of the High Court about the rate of tax were unnecessary, and they are therefore set aside.15. We also agree with the view taken in the impugned judgment that the proceedings in question were beyond limitation. It appears that against three assessment orders for the period3, the respondent preferred three appeals i.e. JUSTA98 before the Joint Commissioner, Commercial Taxes (Appeal), Jamshedpur Division, Jamshedpur. The appellate authority passed a common order on 31st August, 1998 and communicated the decision vide Memo No. 2177 dated 5th November, 1998 to the assessing authority and other officers. The assessing authority was directed to make aAs per the proviso to Section 24 of the Bihar Finance Act, the assessing authority was supposed to complete and pass theorder pursuant to the remand by 5th November, 2000, two years from the date of communication of such order to the assessing authority. However, the assessment was not concluded and fresh assessment on remand was made on 27th November, 2004 i.e. after more than six years of communication of the said order. Hence, it was clearly time barred.16. From the records, it appears that the appellate order passed on 31st August, 1998 was communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998. The respondent obtained a certified copy of the same in January, 1999. Memo No. 204 dated 6th August, 2003, as referred to by the counsel for the State is the second time communication, which was only a reminder.Thus, the appellate order having been communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998 for the purposes of limitation the period will start from 5th November, 1998 and will be complete on 5th November, 2000 i.e. two years from the date of communication of such order to the assessing authority.We accordingly hold that the assessment order made after remand on 27th November, 2004 and the consequential demand of notice raised in pursuance of such order ofall dated 29th November, 2004 areunder Section 24 of the Bihar Finance Act. | 0 | 1,873 | 529 | ### 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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item does not come within List II or List III of the Seventh Schedule to the Constitution, then it can only be the Central legislature i.e. the Parliament which can levy tax either under List I or under the residual provision contained in Article 248 thereof. 9. Section 21 of the Bihar Sales Tax Act, as amended states: "Sec. 21. - Taxable Turnover - (1) For the purpose of this part the taxable turnover of a dealer shall be that part of his gross turnover which remains after deduction therefrom -(a)(i) in case of the works contract the amount of labour and any other charges in the manner and to the extent prescribed". 10. Rule 13A of the Bihar Sales Tax Rules which was also amended by a notification dated 1st February, 2000 read as follows: "Rule 13A. Deduction in case of works contract on account of labour charges. - [if the dealer fails to produce any account or the accounts produced are unreliable] deduction under sub-clause (i) of clause (a) of sub-section (1) of section 21 on account of labour charges in the case of works contract from gross turnover shall be equal to the following percentages." 11. The aforesaid provisions have been adopted by the State of Jharkhand vide notification dated 15.12.2000 and thus are applicable in the State of Jharkhand. 12. Interpretation of the amended Section 21(1) and the newly substituted Rule 13A fell for consideration of a Division Bench of the Patna High Court in the case of Larsen & Toubro Ltd. vs. State of Bihar 134 STC 354 . The Patna High Court in the said decision observed as under: "Rule 13A unfortunately does not talk of "any other charges". Rule 13A unfortunately does not take into consideration that under the Rules the deduction in relation to any other charges in the manner and to the extent were also to be prescribed. Rule 13A cannot be said to be an absolute follow-up legislation to sub-clause (i) of clause (a) of section 21(1). When the law provides that something is to be prescribed in the Rules then that thing must be prescribed in the Rules to make the provisions workable and constitutionally valid. In the matter of Gannon Dunkerley & Co. (1993) 88 STC 204 the Supreme Court observed that as sub-section (3) of section 5 and sub-rule (2) of rule 29 of the Rajasthan Sales Tax Act and the Rules were not providing for particular deductions, the same were invalid. In the present matter the constitutional provision of law says that particular deductions would be provided but unfortunately nothing is provided in relation to the other charges either in section 21 itself or in the rules framed in exercise of the powers conferred by section 58 of the Bihar Finance Act. In our considered opinion sub-clause (i) of clause (a) of section 21(1) read with rule 13A of the Rules did not make sub-clause (1) fully workable because the manner and extent of deduction relating to any other charges has not been provided prescribed by the State." 13. We fully agree with the view taken by the Patna High Court in the aforesaid decision. It is not merely the labour charges which are deductible from the value of the works contract, but all other charges/amounts also, except the value of the goods sold in execution of the works contract. This is because only the value of the goods sold can be taxed as sales tax. It may be mentioned that the respondent had initially only claimed deduction of labour charges, but that was in view of the understanding of the law at that time. The matter became clear only after the decision of this Court in Gannon Dunkerley & Co. vs. State of Rajasthan (supra).14. It may further be mentioned that the observations made by the Division Bench of the High Court about the rate of tax were unnecessary, and they are therefore set aside.15. We also agree with the view taken in the impugned judgment that the proceedings in question were beyond limitation. It appears that against three assessment orders for the period 1990-91, 1991-92 and 1992-93, the respondent preferred three appeals i.e. JUSTA 56/97-98, 57/97-98 and 58/97-98 before the Joint Commissioner, Commercial Taxes (Appeal), Jamshedpur Division, Jamshedpur. The appellate authority passed a common order on 31st August, 1998 and communicated the decision vide Memo No. 2177 dated 5th November, 1998 to the assessing authority and other officers. The assessing authority was directed to make a re-assessment. As per the proviso to Section 24 of the Bihar Finance Act, the assessing authority was supposed to complete and pass the re-assessment order pursuant to the remand by 5th November, 2000, two years from the date of communication of such order to the assessing authority. However, the assessment was not concluded and fresh assessment on remand was made on 27th November, 2004 i.e. after more than six years of communication of the said order. Hence, it was clearly time barred.16. From the records, it appears that the appellate order passed on 31st August, 1998 was communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998. The respondent obtained a certified copy of the same in January, 1999. Memo No. 204 dated 6th August, 2003, as referred to by the counsel for the State is the second time communication, which was only a reminder. 17. Thus, the appellate order having been communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998 for the purposes of limitation the period will start from 5th November, 1998 and will be complete on 5th November, 2000 i.e. two years from the date of communication of such order to the assessing authority. 18. We accordingly hold that the assessment order made after remand on 27th November, 2004 and the consequential demand of notice raised in pursuance of such order of re-assessment, all dated 29th November, 2004 are time-barred under Section 24 of the Bihar Finance Act.19.
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13. We fully agree with the view taken by the Patna High Court in the aforesaid decision. It is not merely the labour charges which are deductible from the value of the works contract, but all other charges/amounts also, except the value of the goods sold in execution of the works contract. This is because only the value of the goods sold can be taxed as sales tax. It may be mentioned that the respondent had initially only claimed deduction of labour charges, but that was in view of the understanding of the law at that time. The matter became clear only after the decision of this Court in Gannon Dunkerley & Co. vs. State of Rajasthan (supra).14. It may further be mentioned that the observations made by the Division Bench of the High Court about the rate of tax were unnecessary, and they are therefore set aside.15. We also agree with the view taken in the impugned judgment that the proceedings in question were beyond limitation. It appears that against three assessment orders for the period3, the respondent preferred three appeals i.e. JUSTA98 before the Joint Commissioner, Commercial Taxes (Appeal), Jamshedpur Division, Jamshedpur. The appellate authority passed a common order on 31st August, 1998 and communicated the decision vide Memo No. 2177 dated 5th November, 1998 to the assessing authority and other officers. The assessing authority was directed to make aAs per the proviso to Section 24 of the Bihar Finance Act, the assessing authority was supposed to complete and pass theorder pursuant to the remand by 5th November, 2000, two years from the date of communication of such order to the assessing authority. However, the assessment was not concluded and fresh assessment on remand was made on 27th November, 2004 i.e. after more than six years of communication of the said order. Hence, it was clearly time barred.16. From the records, it appears that the appellate order passed on 31st August, 1998 was communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998. The respondent obtained a certified copy of the same in January, 1999. Memo No. 204 dated 6th August, 2003, as referred to by the counsel for the State is the second time communication, which was only a reminder.Thus, the appellate order having been communicated to the assessing authority vide Memo No. 2177 dated 5th November, 1998 for the purposes of limitation the period will start from 5th November, 1998 and will be complete on 5th November, 2000 i.e. two years from the date of communication of such order to the assessing authority.We accordingly hold that the assessment order made after remand on 27th November, 2004 and the consequential demand of notice raised in pursuance of such order ofall dated 29th November, 2004 areunder Section 24 of the Bihar Finance Act.
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Commissioner Of Income-Tax, Patiala & Ors Vs. M/S. Shahzada Nand & Sons & Ors | a rule of construction, but it has no universal application. To invoke it, the general and special provisions shall occupy the same field. In this case, both during the period between the amendments of 1954 and 1956 thereafter they occupied different fields. By July 17, 1954, when sub-s. (1A) was introduced in S. 34, no proceedings under S. 34 (1) (a) could be initiated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on September 1, 1939, and ending on March 31, 1946 for they were barred under the unamended section. Sub-section (1A), therefore, practically governed a situation that was not governed by the provisions of Section 34 (1) (a). It was intended to catch escaped incomes of the war years which were out of the reach of S. 34 (1) (a). It is not, therefore, appropriate to describe sub-s. (1A) as one carved out of sub-s. (1) (a) or to call it a species of which sub-s. (1) (a) is the genus. Sub-section (1A) operated where sub-s. (1) (a) practically ceased to function. 12. Now, coming to the period after the Finance Act, 1956, was passed, i.e., after April 1, 1956, a different situation arose. The extended period given under the second proviso to sub-s. (1A) expired on March 31, 1956. Thereafter, sub-s. (1A) ceased to be operative in the sense that no notice could thereafter be given thereunder. It worked itself out. The Legislature could, have extended the period under the second proviso to sub-s. (1A), but it did not do so. It did not give a further lease of life to it; instead it removed the period of limitation under sub-s. (1) (a), as sub-s. (1A) had become practically defunct. The wide phraselology of sub-s. (1) (a) takes in all the escaped concealed incomes during all the years commencing from 1941 and confers a power on the Income-tax Officer to give notice there under in respect of the said incomes without any bar of limitation. There is, therefore, no conflict after April 1, 1956, between sub-s. (1) (a) and sub-s. (1A) as the later ceased to be operative. 13. There is another way of looking at the problem. Sub-section (1A) does not really prescribe any period of limitation. It enables the Income-tax Officer to take proceedings within a particular time, though the period of limitation had expired. In this view, no question of carving out a species out of a genus arises. It conferred a special power on the Income-tax Officer and the said power expired on April 1, 1956. 14. There is yet another way of looking at the problem. The non-obstinate clause in sub-s. (1A) indicates that it was enacted to operate notwithstanding that the period of 8 years had expired. The said sub-section served its purpose only when the period of 8 years governed a notice under sub-s. (1) (a). But when that bar of limitation was removed, sub-s. (1A) had become otiose. 15. Sub-section (1B), as amended by the Finance Act of 1956, also throws some light on the interpretation of S. 34. Before it was amended, an assessee to whom a notice had been issued under sub-s. (1) (a) could apply to the Central Board of Revenue for settlement of the amount of tax payable by him. After the amendment, an assessee to whom a notice was given under sub-s. (1) (a) and under sub-s. (1A) for any of the years ending on March 31, 1941 to 1948 could apply for such a relief to the Central Board of Revenue. The years 1941 to 1948 are the war years. This sub-section, therefore, assumes that notice could be issued in respect of the war years under sub-s. (1) (a). The notice contemplated by sub-s. (1B) could only be a notice after the amendment of 1956, for such notice could not have been issued earlier under sub-s. (1) (a) in respect of the said years. The notice under sub-s. (1A) obviously refers to the notice issued before the amendment of 1956 and pending disposal. 16. Sub-section (4) added by the Indian Income-tax (Amendment) Act, 1959, also reinforces the said construction. As indicated earlier, that sub-section was added to get over the legal objection that proceedings barred before 1956 were not revived under the 1956 Act. It is true that sub-s. (4) refers only to sub-s. (1) (a), but the sub-section indicates that the Legislature assumed that proceedings after 1956 could only be taken under sub-s. (1) (a). 17. It was asked, with some plausibility, if the Legislature assumed that sub-s. (1A) ceased to be operative why it was retained along with its proviso prescribing a period of limitation in the amended section. Though no new notices could be issued under that sub-section after April 1, 1956, notices already issued before that date were pending. They would be disposed of in the manner prescribed by sub-ss. (1A), (1B), (1C) and (1D) of S. 34. All the said sub-sections formed an integral code. The Legislature, presumably, intended to keep the said sub-sections whereunder proceedings had already been initiated and make available to the said proceedings the procedure prescribed under the said provisions. It may also be that sub-s. (1A) was kept in superabundant caution. Whatever that may be, it cannot in the circumstances mentioned by us, detract from the clear provisions of sub-s. (1) (a). 18. We have carefully gone through the judgments of the various High Courts, namely, Bombay, Madhya Pradesh. Gujarat and Calcutta, cited at the Bar. We received considerable help from the reasonings contained in the said judgments. As we have in the course of the judgment dealt with the conflicting reasons given by the High Courts, we do not think it necessary to consider each of the four judgments in detail. For the reasons mentioned above, we agree with the conclusions arrived at by the Bombay and Calcutta High Courts in preference to those reached by the Madhya Pradesh and Gujarat High Courts. | 0[ds]11. Section 34 (1) (a), as it now stands on the statute book, expressly states that in cases falling under Cl. (a) of sub.s. (1) notice can be served thereunder on an assessee at any time. The terms of S. 34 (1) (a), read with the 2nd proviso, take in the concealed incomes of all the years commencing from the year ending on March 31, 1941.It does not exclude the income of the war years, but the said incomes are sought to be excluded on the principle of generalia specialibus non derogant. As we have point out earlier, the said doctrine embodies a rule of construction, but it has no universal application. To invoke it, the general and special provisions shall occupy the same field. In this case, both during the period between the amendments of 1954 and 1956 thereafter they occupied different fields. By July 17, 1954, when sub-s. (1A) was introduced in S. 34, no proceedings under S. 34 (1) (a) could be initiated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on September 1, 1939, and ending on March 31, 1946 for they were barred under the unamended section. Sub-section (1A), therefore, practically governed a situation that was not governed by the provisions of Section 34 (1) (a). It was intended to catch escaped incomes of the war years which were out of the reach of S. 34 (1) (a). It is not, therefore, appropriate to describe sub-s. (1A) as one carved out of sub-s. (1) (a) or to call it a species of which sub-s. (1) (a) is the genus. Sub-section (1A) operated where sub-s. (1) (a) practically ceased to function12. Now, coming to the period after the Finance Act, 1956, was passed, i.e., after April 1, 1956, a different situation arose. The extended period given under the second proviso to sub-s. (1A) expired on March 31, 1956. Thereafter, sub-s. (1A) ceased to be operative in the sense that no notice could thereafter be given thereunder. It worked itself out. The Legislature could, have extended the period under the second proviso to sub-s. (1A), but it did not do so. It did not give a further lease of life to it; instead it removed the period of limitation under sub-s. (1) (a), as sub-s. (1A) had become practically defunct. The wide phraselology of sub-s. (1) (a) takes in all the escaped concealed incomes during all the years commencing from 1941 and confers a power on the Income-tax Officer to give notice there under in respect of the said incomes without any bar of limitation. There is, therefore, no conflict after April 1, 1956, between sub-s. (1) (a) and sub-s. (1A) as the later ceased to be operative13. There is another way of looking at the problem. Sub-section (1A) does not really prescribe any period of limitation. It enables the Income-tax Officer to take proceedings within a particular time, though the period of limitation had expired. In this view, no question of carving out a species out of a genus arises. It conferred a special power on the Income-tax Officer and the said power expired on April 1, 195614. There is yet another way of looking at the problem. The non-obstinate clause in sub-s. (1A) indicates that it was enacted to operate notwithstanding that the period of 8 years had expired. The said sub-section served its purpose only when the period of 8 years governed a notice under sub-s. (1) (a). But when that bar of limitation was removed, sub-s. (1A) had become otiose15. Sub-section (1B), as amended by the Finance Act of 1956, also throws some light on the interpretation of S. 34. Before it was amended, an assessee to whom a notice had been issued under sub-s. (1) (a) could apply to the Central Board of Revenue for settlement of the amount of tax payable by him. After the amendment, an assessee to whom a notice was given under sub-s. (1) (a) and under sub-s. (1A) for any of the years ending on March 31, 1941 to 1948 could apply for such a relief to the Central Board of Revenue. The years 1941 to 1948 are the war years. This sub-section, therefore, assumes that notice could be issued in respect of the war years under sub-s. (1) (a). The notice contemplated by sub-s. (1B) could only be a notice after the amendment of 1956, for such notice could not have been issued earlier under sub-s. (1) (a) in respect of the said years. The notice under sub-s. (1A) obviously refers to the notice issued before the amendment of 1956 and pending disposal16. Sub-section (4) added by the Indian Income-tax (Amendment) Act, 1959, also reinforces the said construction. As indicated earlier, that sub-section was added to get over the legal objection that proceedings barred before 1956 were not revived under the 1956 Act. It is true that sub-s. (4) refers only to sub-s. (1) (a), but the sub-section indicates that the Legislature assumed that proceedings after 1956 could only be taken under sub-s. (1) (a)17. It was asked, with some plausibility, if the Legislature assumed that sub-s. (1A) ceased to be operative why it was retained along with its proviso prescribing a period of limitation in the amended section. Though no new notices could be issued under that sub-section after April 1, 1956, notices already issued before that date were pending. They would be disposed of in the manner prescribed by sub-ss. (1A), (1B), (1C) and (1D) of S. 34. All the said sub-sections formed an integral code. The Legislature, presumably, intended to keep the said sub-sections whereunder proceedings had already been initiated and make available to the said proceedings the procedure prescribed under the said provisions. It may also be that sub-s. (1A) was kept in superabundant caution. Whatever that may be, it cannot in the circumstances mentioned by us, detract from the clear provisions of sub-s. (1) (a)18. We have carefully gone through the judgments of the various High Courts, namely, Bombay, Madhya Pradesh. Gujarat and Calcutta, cited at the Bar. We received considerable help from the reasonings contained in the said judgments. As we have in the course of the judgment dealt with the conflicting reasons given by the High Courts, we do not think it necessary to consider each of the four judgments in detail. For the reasons mentioned above, we agree with the conclusions arrived at by the Bombay and Calcutta High Courts in preference to those reached by the Madhya Pradesh and Gujarat High Courts8. Before we advert to the said arguments, it will be convenient to notice the relevant rules of construction. The classic statements of Rowlatt, J., in CapeBrandy Syndicate v. Inland Revenue Commrs., (1921) 1 KB 64 at p.71, still holds the field. It reads:"In a Taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied. One can only look fairly at the language used."To this may be added a rider : in a case of reasonable doubt, the construction most beneficial to the subject is to be adopted. But even so, the fundamental rule of construction is the same for all statutes, whether fiscal or otherwise. "The underlying principle is that the meaning and intention of a statute must be collected from the plain and unambiguous expression used therein rather than from any notions which may be entertained by the Court as to what is just or expedient." The expressed intention must guide the Court. Another rule of construction which is relevant to the present enquiry is expressed in the maxim, generalia specialibush means that when there is a conflict between a general and a special provision, the latter shall prevail. The said principle has been stated in Craies on Statute Law, 5th Edn., at p. 205, thus :"The rule is, that whenever there is a particular enactment and a general enactment in the same statute, and the latter, taken in its most comprehensive sense, would overrule the former, the particular enactment must be operative, and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply."But this rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary; see Maxwell on Interpretation of Statutes, 11th Edn., at pp.n the words of a section are clear but its scope is sought to be curtailed by construction, the approach suggested by Lord coke in In re; Heydons case, (1584) 3 Co. Rep. 7a, yields better results :"To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act; to consider, according to Lord Coke : 1. What was the law before the Act was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy."9. With these rules of construction in mind, let us, now tackle the problem raised in this case. Under S. 34 (1) (a), after it was amended by the Finance Act, 1956, a notice in respect of an escaped concealed income could be issued at any time. The terms of Cl. (a) and the expression "at any time" are clear and unambiguous and, if there is nothing in the Act detracting from the width of the said terms, it is clear that a notice can be issued at any time in respect of the concealed income of any year not being a year ending before March 31, 1941. But S. 34 (1A) provides for the issue of notice in respect of escaped incomes of the previous years within the period beginning on September 1, 1939, and ending on March 31, 1946. Does thisn detract from the generality of S. 34 (1) (a)? The history of the said provision may usefully be noticed. As we have stated earlier, the Parliament passed the Taxation of Income (Investigation Commission) Act, 1947, mainly to catch the escaped incomes of the war profiteers. This Court in Suraj Mall Mohta and Co. v. K. V. Vishwanatha Sastri, (1954) 26 ITR 1 : (AIR 1954 SC 545 ), and Muthiah v. Commr. of, (1956) 29 ITR 390 : (S) AIR 1956 SC 269 ), held that S. 5 (4) and 5 (1) of the said Act became void on the commencement of the Constitution as offending Art. 14 thereof. The first decision led to the insertion of. (1A) to (1D) in S. 34 by thex (Amendment) Act. 1954, with effect from July 17, 1954. The object of the Amending Act was to provide for the assessment orreassessmentof persons who had, to a substantial extent, evaded payment of taxes during the war years and for matters connected therewith. But at the time. (1A) was inserted in S. 34, the period of limitation provided with regard to issue of notices under S. 34 (1) (a) was 8 years and for cases falling under S. 34 (1) (b) it was 4 years; but as thex (Amendment) Act, 1954, came into force only on July 17, 1954, the said periods of limitation prescribed in respect of escaped concealed incomes during the said period had run out except in respect of one or two years. So, with the twin object of extending the time and expediting the assessment, the second proviso was introduced therein to the effect that no such notice should be issued after March 31, 1956. But, notwithstanding the said Act, presumably notices could not have been issued against all the evaders of tax with incomes of rupees one lakh or more during the said period. Parliament also wanted to bring to tax escaped concealed income during the period not covered by the said years. With that object in 1956. S. 34 was amended by the Finance Act. 1956, by which it was provided that notice under S. 34 (1) (a) can be issued at any time. But sub.s. (1A) was retained, including the second proviso. This amendment, along with the other amendments, made by the said Act came into force on April 1, 1956. In 1959, the said section was again amended by the Indianx (Amendment) Act. 1959. Undersubs(4), as amended by the 1959 Amendment Act, notice under. (1) (a) might be issued at any time notwithstanding that at the time of the issue of notice the period of 8 years specified in then before its amendment by the Finance Act, 1956, had expired in respect of the year to which the notice related. This amendment was necessitated by the judgment of the Bombay and Calcutta High Courts in Debi Dutt v. T. Belan, (1959) 35 ITR 781 : (AIR 1958 Cal 398 ), and S. C. Prashar v. Vasantsen, (1956) 29 ITR 857 : ((S) AIR 1956 Bom 530 ), respectively holding that if the right of thex Officer to reopen an assessment was barred under the law for the time being in force, not enlargement of the time could revive such right in the absence of express words of necessary intendment.n (4) was added to S. 34 to make it abundantly clear that notice under Section 34 (1) (a) could be issued at any time notwithstanding that the said right was barred before the Amendment Act of 1956. This history of the legislation leaves no room for doubt that the intention of the Legislature was to bring the escaped concealed income of rupees one lakh and more to tax without any time limit. Before the 1956 Act was passed, the period of limitation prescribed for proceeding against concealed incomes of rupees one lakh and more during the war years and the earlier years had expired. The Legislature stepped in to prevent evasion of taxes on such incomes and lifted the ban of limitation in respect thereof, subject to certain conditions. | 0 | 6,569 | 2,858 | ### Instruction:
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a rule of construction, but it has no universal application. To invoke it, the general and special provisions shall occupy the same field. In this case, both during the period between the amendments of 1954 and 1956 thereafter they occupied different fields. By July 17, 1954, when sub-s. (1A) was introduced in S. 34, no proceedings under S. 34 (1) (a) could be initiated except for the assessment year 1946-47 in respect of the previous years that fell within the period beginning on September 1, 1939, and ending on March 31, 1946 for they were barred under the unamended section. Sub-section (1A), therefore, practically governed a situation that was not governed by the provisions of Section 34 (1) (a). It was intended to catch escaped incomes of the war years which were out of the reach of S. 34 (1) (a). It is not, therefore, appropriate to describe sub-s. (1A) as one carved out of sub-s. (1) (a) or to call it a species of which sub-s. (1) (a) is the genus. Sub-section (1A) operated where sub-s. (1) (a) practically ceased to function. 12. Now, coming to the period after the Finance Act, 1956, was passed, i.e., after April 1, 1956, a different situation arose. The extended period given under the second proviso to sub-s. (1A) expired on March 31, 1956. Thereafter, sub-s. (1A) ceased to be operative in the sense that no notice could thereafter be given thereunder. It worked itself out. The Legislature could, have extended the period under the second proviso to sub-s. (1A), but it did not do so. It did not give a further lease of life to it; instead it removed the period of limitation under sub-s. (1) (a), as sub-s. (1A) had become practically defunct. The wide phraselology of sub-s. (1) (a) takes in all the escaped concealed incomes during all the years commencing from 1941 and confers a power on the Income-tax Officer to give notice there under in respect of the said incomes without any bar of limitation. There is, therefore, no conflict after April 1, 1956, between sub-s. (1) (a) and sub-s. (1A) as the later ceased to be operative. 13. There is another way of looking at the problem. Sub-section (1A) does not really prescribe any period of limitation. It enables the Income-tax Officer to take proceedings within a particular time, though the period of limitation had expired. In this view, no question of carving out a species out of a genus arises. It conferred a special power on the Income-tax Officer and the said power expired on April 1, 1956. 14. There is yet another way of looking at the problem. The non-obstinate clause in sub-s. (1A) indicates that it was enacted to operate notwithstanding that the period of 8 years had expired. The said sub-section served its purpose only when the period of 8 years governed a notice under sub-s. (1) (a). But when that bar of limitation was removed, sub-s. (1A) had become otiose. 15. Sub-section (1B), as amended by the Finance Act of 1956, also throws some light on the interpretation of S. 34. Before it was amended, an assessee to whom a notice had been issued under sub-s. (1) (a) could apply to the Central Board of Revenue for settlement of the amount of tax payable by him. After the amendment, an assessee to whom a notice was given under sub-s. (1) (a) and under sub-s. (1A) for any of the years ending on March 31, 1941 to 1948 could apply for such a relief to the Central Board of Revenue. The years 1941 to 1948 are the war years. This sub-section, therefore, assumes that notice could be issued in respect of the war years under sub-s. (1) (a). The notice contemplated by sub-s. (1B) could only be a notice after the amendment of 1956, for such notice could not have been issued earlier under sub-s. (1) (a) in respect of the said years. The notice under sub-s. (1A) obviously refers to the notice issued before the amendment of 1956 and pending disposal. 16. Sub-section (4) added by the Indian Income-tax (Amendment) Act, 1959, also reinforces the said construction. As indicated earlier, that sub-section was added to get over the legal objection that proceedings barred before 1956 were not revived under the 1956 Act. It is true that sub-s. (4) refers only to sub-s. (1) (a), but the sub-section indicates that the Legislature assumed that proceedings after 1956 could only be taken under sub-s. (1) (a). 17. It was asked, with some plausibility, if the Legislature assumed that sub-s. (1A) ceased to be operative why it was retained along with its proviso prescribing a period of limitation in the amended section. Though no new notices could be issued under that sub-section after April 1, 1956, notices already issued before that date were pending. They would be disposed of in the manner prescribed by sub-ss. (1A), (1B), (1C) and (1D) of S. 34. All the said sub-sections formed an integral code. The Legislature, presumably, intended to keep the said sub-sections whereunder proceedings had already been initiated and make available to the said proceedings the procedure prescribed under the said provisions. It may also be that sub-s. (1A) was kept in superabundant caution. Whatever that may be, it cannot in the circumstances mentioned by us, detract from the clear provisions of sub-s. (1) (a). 18. We have carefully gone through the judgments of the various High Courts, namely, Bombay, Madhya Pradesh. Gujarat and Calcutta, cited at the Bar. We received considerable help from the reasonings contained in the said judgments. As we have in the course of the judgment dealt with the conflicting reasons given by the High Courts, we do not think it necessary to consider each of the four judgments in detail. For the reasons mentioned above, we agree with the conclusions arrived at by the Bombay and Calcutta High Courts in preference to those reached by the Madhya Pradesh and Gujarat High Courts.
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the general enactment must be taken to affect only the other parts of the statute to which it may properly apply."But this rule of construction is not of universal application. It is subject to the condition that there is nothing in the general provision, expressed or implied, indicating an intention to the contrary; see Maxwell on Interpretation of Statutes, 11th Edn., at pp.n the words of a section are clear but its scope is sought to be curtailed by construction, the approach suggested by Lord coke in In re; Heydons case, (1584) 3 Co. Rep. 7a, yields better results :"To arrive at the real meaning, it is always necessary to get an exact conception of the aim, scope, and object of the whole Act; to consider, according to Lord Coke : 1. What was the law before the Act was passed; 2. What was the mischief or defect for which the law had not provided; 3. What remedy Parliament has appointed; and 4. The reason of the remedy."9. With these rules of construction in mind, let us, now tackle the problem raised in this case. Under S. 34 (1) (a), after it was amended by the Finance Act, 1956, a notice in respect of an escaped concealed income could be issued at any time. The terms of Cl. (a) and the expression "at any time" are clear and unambiguous and, if there is nothing in the Act detracting from the width of the said terms, it is clear that a notice can be issued at any time in respect of the concealed income of any year not being a year ending before March 31, 1941. But S. 34 (1A) provides for the issue of notice in respect of escaped incomes of the previous years within the period beginning on September 1, 1939, and ending on March 31, 1946. Does thisn detract from the generality of S. 34 (1) (a)? The history of the said provision may usefully be noticed. As we have stated earlier, the Parliament passed the Taxation of Income (Investigation Commission) Act, 1947, mainly to catch the escaped incomes of the war profiteers. This Court in Suraj Mall Mohta and Co. v. K. V. Vishwanatha Sastri, (1954) 26 ITR 1 : (AIR 1954 SC 545 ), and Muthiah v. Commr. of, (1956) 29 ITR 390 : (S) AIR 1956 SC 269 ), held that S. 5 (4) and 5 (1) of the said Act became void on the commencement of the Constitution as offending Art. 14 thereof. The first decision led to the insertion of. (1A) to (1D) in S. 34 by thex (Amendment) Act. 1954, with effect from July 17, 1954. The object of the Amending Act was to provide for the assessment orreassessmentof persons who had, to a substantial extent, evaded payment of taxes during the war years and for matters connected therewith. But at the time. (1A) was inserted in S. 34, the period of limitation provided with regard to issue of notices under S. 34 (1) (a) was 8 years and for cases falling under S. 34 (1) (b) it was 4 years; but as thex (Amendment) Act, 1954, came into force only on July 17, 1954, the said periods of limitation prescribed in respect of escaped concealed incomes during the said period had run out except in respect of one or two years. So, with the twin object of extending the time and expediting the assessment, the second proviso was introduced therein to the effect that no such notice should be issued after March 31, 1956. But, notwithstanding the said Act, presumably notices could not have been issued against all the evaders of tax with incomes of rupees one lakh or more during the said period. Parliament also wanted to bring to tax escaped concealed income during the period not covered by the said years. With that object in 1956. S. 34 was amended by the Finance Act. 1956, by which it was provided that notice under S. 34 (1) (a) can be issued at any time. But sub.s. (1A) was retained, including the second proviso. This amendment, along with the other amendments, made by the said Act came into force on April 1, 1956. In 1959, the said section was again amended by the Indianx (Amendment) Act. 1959. Undersubs(4), as amended by the 1959 Amendment Act, notice under. (1) (a) might be issued at any time notwithstanding that at the time of the issue of notice the period of 8 years specified in then before its amendment by the Finance Act, 1956, had expired in respect of the year to which the notice related. This amendment was necessitated by the judgment of the Bombay and Calcutta High Courts in Debi Dutt v. T. Belan, (1959) 35 ITR 781 : (AIR 1958 Cal 398 ), and S. C. Prashar v. Vasantsen, (1956) 29 ITR 857 : ((S) AIR 1956 Bom 530 ), respectively holding that if the right of thex Officer to reopen an assessment was barred under the law for the time being in force, not enlargement of the time could revive such right in the absence of express words of necessary intendment.n (4) was added to S. 34 to make it abundantly clear that notice under Section 34 (1) (a) could be issued at any time notwithstanding that the said right was barred before the Amendment Act of 1956. This history of the legislation leaves no room for doubt that the intention of the Legislature was to bring the escaped concealed income of rupees one lakh and more to tax without any time limit. Before the 1956 Act was passed, the period of limitation prescribed for proceeding against concealed incomes of rupees one lakh and more during the war years and the earlier years had expired. The Legislature stepped in to prevent evasion of taxes on such incomes and lifted the ban of limitation in respect thereof, subject to certain conditions.
|
Kavalappara Kottarathil Kochunnimoopil Nayar Vs. The State Of Madras And Others(And Connected Petition) | is quite clear to us that that by itself does not make the Act a thing done in the exercise of judicial power. The legislature has the power to give retrospective operation to an Act. That of course interferes with vested rights but the legislature can interfere with such rights in the exercise of its legislative power.That is not adjudicating between parties affected by the Act. It is laying down the law to be followed by Courts in future. It is so nonetheless that the law is altered as from a past date. 78. Then it is said that the Act provides that it is to have effect notwithstanding any decision of the Court contrary to its provisions. That the Act no doubt does. Can it be said that it thereby adjudicates and not legislates? In Piare Dusadh v. Emperor, 1944-6 FCR 61: (AIR 1944 FC 1), it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that "Legislative action cannot be made to retract on past controversies and so reverse decisions which the courts in the exercise of their undoubted authority have made": Cooleys Constitutional Limitation, 8th Ed. p.190. It was held in Piare Dusadhs case, 1944-6 FCR 61: (AIR 1944 FC 1), at p. 104 (of FCR): (at p. 9 of AIR) that this rule had no application in India. the observation there made may be set out:-"It is clear from the American authorities that this limitation has been derived from the interpretation placed by the American courts on what are known as the Fifth and fourteenth Amendments which provide against any person being "deprived of life, liberty or property without due process of law". The expression "due process of law" has been interpreted as referring only to "judicial process" and as not including legislation,........ As the requirement had been made part of the written constitution, it followed that no enactment passed by a legislature limited by that constitution could authorise anything in violation of it........... Hence the rule (stated by Cooley) that "it would be incompetent for the legislature, by retrospective legislation, to make valid any proceedings which had been had in the courts but which were void for want of jurisdiction over the parties. The constitutional position in India is different." 79. It seems to us that this observation of the Federal Court which no doubt was made with reference to the Government of India Act, 1935 applies with equal force to the position obtaining under our Constitution. It has been held by this Court that there is no scope under our Constitution for the application of the American concept of "due process of law". The American cases cited in support of the contention that a legislation cannot override judicial decisions therefore afford no assistance in our country. Article 31B Itself provides that it would apply notwithstanding any judgment, decree or order of any court to the countrary and it had been enacted by an Act passed by the Parliament. There have been many Acts passed since the Constitution came into force which contained similar provisions. In no case has it ever been contended that such an Act amounted to an exercise of the judicial function by the legislature. The Act before us lays down a law to be applied by courts in future in the adjudication of disputes between parties. It also says that the courts shall apply the law notwithstanding that there is an earlier decision on the rights of the parties which are being litigated upon in a subsequent proceeding. 80. The Act does not itself annul any decision of any court. All that it says is that the law laid down is to be applied by courts irrespective of any previous decision. It does not in any sense adjudicate between parties. It, therefore, seems to us that the contention that the impugned Act is really an exercise of judicial power is ill-founded. 81. In our view, the challenge brought against the impugned Act fails. Petition No. 443 of 1955 should therefore be dismissed with costs. 82. Coming now to the Petition No. 40 of 1956 the petitioners here are the wife and the 2 daughters of the petitioner in Petition No. 443 of 1955. The respondents are the junior members of the tarwad as also the Moopil Nayar. The petitioners claim as donees from the Moopil Nayar to be entitled to the sthanam lands in the Palghat area. It is not necessary for us to decide whether the petitioner in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and is must for the same reason fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners rights in any lands held by them. We would therefore dismiss that petition with costs except the costs of the hearing before us for all the 3 petitions were heard together. 83. Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam land situate in an area which was formerly part of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is therefore dismissed and he will pay the costs excepting the costs of the hearing. Order | 1[ds]The object of the amendment relevant to the present enquiry was only to enable the State to implement its next objective in the land reform, namely, the fixing of limits to the extent of agricultural lands that may be owned or occupied by any person, the disposal of any land held in excess of the prescribed maximum and the further modification of the rights of land owners and tenants in agricultural holdings.The object was, therefore, to bring about a change in the agricultural economy but not to recognize or confer any title in the whole or a part of an estate on junior members of a family19. The impugned Act does not purport to modify or extinguish any right in an estate. The avowed object of it is only to declare particular sthanams to be Marumakkathayam tarwards and the property pertaining to such sthanamas as the property of the said tarward. It declares particular sthanamas to have always been tarward and their property to have always been tarward property. The result is that the sole title of the sthanee is not recognised and the members of the tarward are given rights therein. The impugned Act does not effectuate any agrarian reform and regulate the rights inter se between landlords and tenants. We, therefore, hold that the respondents cannot rely upon Art. 31A to deprive the petitioner of his fundamental rightsIt is, therefore, manifest that the law must satisfy two tests before it can be a valid law, namely, (1) that the appropriate legislature had competency to make the law; and (2) that it does not take away or abridge any of the fundamental rights enumerated in Part III of the Constitution. It follows that the law depriving a person of his property will be an invalid law if it infringes either Art. 19 (1) (f) or any other Article of Part IIIThe views of the learned Judges may be broadly summarised under three heads, viz., (1) to invoke Art. 19 (1), a law shall be made directly infringing that right; (2) Arts. 21 and 22 constitute a self-contained code; and (3) the freedoms in Art. 19 postulate a free man. On the basis of the said theories, this Court, with Fazl Ali, J., dissenting, rejected the plea that a law made under Art. 21 shall not infringe Art. 19 (1). Had the question been res integra, some of us would have been inclined to agree with the dissenting view expressed by Fazl Ali, J.; but we are bound by this judgment.Even so there is no analogy between Art. 21, as interpreted by this Court, and Art. 31 (1). Article 21 deals with personal liberty. Personal liberty, Kania, C. J., observed, includes, "the right to eat or sleep when one likes or to work or no to work as and when one pleases and several such rights" and "deprivation of such liberty", in the words of the learned Chief Justice, "is quite different from restriction (which is relatively a minor right of a citizen)". "Personal Liberty" is a more comp enensive concept and has a much wider connotation than the right conferred under Art, 19 (1) (d). Articles 19(1)(d). and 22 deal with different subjects, whereas both Arts. 19 (1) (f) and 31 (1) deal with the same subject, namely, property; while under Art. 19 (1) (f), a citizen has the right to acquire, hold and dispose of property, Art. 31 (1) enables the State to make a law to deprive him of that property. Such a law directly infringes the fundamental right given under Art. 19 (1) (f). Further, Arts. 21 and 22 are linked up together; while Art. 21 enables the State to deprive a person of his life or personal liberty according to the procedure established by law, Art. 22 prescribes certain procedure in respect of both punitive and preventive detention. They constitute an integrated code in the matter of personal liberty. On the other hand, Art. 31 (1), by reason of the amendment, ceases to be part of the guarantee against acquisition or requisition of property without the authority of law, and must therefore be construed on its own terms26. The said Articles are not in pari materia and they differ in their scope and content. There is material difference not only in the phraseology but also in their setting. Article 19, therefore, cannot be construed on the basis of the construction placed upon Art. 2131. We find it also very difficult to accept the second and third aspects of the approach to the question. The duty of this Court is only to interpret the provisions of the Constitution in a liberal spirit, but not to eradicate or modify the fundamental rights. That apart, our Constitution-makers thought otherwise. The Constitution declares the fundamental rights of a citizen and lays down that all laws made abridging or taking away such rights shall be void. That is a clear indication that the makers of the Constitution did not think fit to give our Parliament the same powers which the Parliament of England has. While the Constitution contemplates a welfare State, it also provides that it should be brought about by the legislature subject to the limitations imposed on its power. If the makers of the Constitution intended to confer unbridled power on the Parliament to make any law it liked to bring about the welfare State, they would not have provided for the fundamental rights. The Constitution gives every scope for ordered progress of society towards a welfare State. The State is expected to bring about a welfare State within the framework of the Constitution, for it is authorized to impose reasonable restrictions, in the interests of the general public, on the fundamental rights recognized in Art. 19. If the interpretation sought to be placed on Art. 31 (1) was accepted, it would compel the importation of the entire doctrine of police power and grafung it in Article 31 (1) or the recognition of arbitrary power in the legislature with the hope or consolation suggested that our Parliament and legislatures may be trusted not to act arbitrarily. The first suggestion is not legally permissible and the second does not stand to reason, for the Constitution thought fit to impose limitations on the power of the legislatures even in the case of lesser infringements of the rights of a citizen33. We, therefore, hold that a law made depriving a citizen of his property shall be void, unless the law so made complies with the provisions of cl. (5) of Art. 19 of the Constitution47. To summarize : The origin of the sthanam is lost in antiquity.It primarily means a dignity and denotes the status of the senior Raja in a Malabar Kovilgom or palace. It is surmised that sthanams were also created by the Rajas by giving certain properties to military chieftains and public officers and also by tarwads creating them and allocating certain properties for their maintenance. Most of the incidents of a sthanam are well settled. Usually the seniormost male member of the family and occasionally a female member attains a sthanam. Properties are attached to the sthanam for the maintenance of its dignity. The legal position of a sthanee is equated to that of a Hindu widow in that he represents the estate for the time being and he can alienate the properties for necessity or for the benefit of the estate. Unlike a Hindu widow, the successor to a sthanee is always a life-estate-holder. In that respect his position is more analogous to an impartible estate-holder. He ceases to have any present interest in the tarwad properties. Like a Hindu widow or an impartible estate-holder, he has an absolute interest n the income of the sthanam properties or acquisitions therefrom. His position is approximated to a member separated from the family and that the members of the tarwad succeed to his acquisition unless accreted to the estate and he succeeds to the tarwad properties, if the tarwad becomes extinct. Questions like what would happen if there is no male heir to a sthanam at any point of time - whether the properties pertaining to the sthanam would escheat to the State or devolve upon the members of the tarwad or whether a subsequent birth of a male heir would revive the sthanam - are raised by Sundara Aiyar in his book, but there is a decision of the Madras High Court where in the case of Punnathood family a subsequent born male heir was given a decree for the possession of the properties of a sthanam. On the question whether a sthanam property, not being the property of a member of a tarwad, be blended with the property of the tarwad so as to make it a tarwad property, there is no direct decision. On principle if the sthanee, on attaining the sthanam is in the position of a separated member of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect49. With this background let us look at the terms of the Act to see what it purports to do. What is the effect of the impugned Act? It is not the form that matters but the substance of it in its operation on the vested rights of citizens. The Act destroys the finality of decrees of Courts establishing the title of janmies to the sthanam properties. It affects the undisputed title of sthanees in sthanam properties, though they may not have obtained decrees in respect thereof. If statutorily confers title retrospectively on the members of the tarwad who had none before. It arbitrarily dislocates the title of particular sthanees in respect of certain sthanam with particular characteristics, which have no relation to the title of the sthanees. The first characteristic mentioned in the impugned Act is that there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad. If the word "intermingling" conveys only the idea of mere factual mixing up of the sthanam properties with the tarwad properties, it cannot, by any known legal notion of Marumakkathayam Law or on any analogy drawn from Hindu Law, convert the sthanam property into the tarwad property. Even if it is understood in the sense of blending, the sthanee, who ceases to be a member of the tarwad and is in a position of a separated member, cannot legally blend his property with that of the tarwad, for the legal concept of blending implies that the person who blends his property with that of the family is an undivided member of the family50. The second characteristic mentioned in the impugned Act is that the members have been receiving maintenance from properties purporting to be sthanam properties as of right or in pursuance of custom or otherwise. This characteristic is foreign to the concept of sthanam. No member of a tarwad is entitled as of right to any maintenance from out of properties of the sthanam. Under this clause, if maintenance is so received, the sthanam is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out of the sthanam property brings about the said result. If a sthancee creates any such right a favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam properties or its successor. If may custom be established on evidence, it may become an incident of the sthanam, but it cannot obliterate or extinguish it or convert it into a tarwad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis.The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary.On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words "or otherwise" must be confined to things analogous to right or contract such as lost grant, immemorial user etc.It appears to us that the word "otherwise" in the context only means "whatever may be the origin of the receipt of maintenance". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty.It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sthanam which ex facie is expropriatory and unreasonable51. Nor does the third characteristic embody an unimpeachable test of the extinction of a sthanam or the conversion of the same into a tarwad. Under the impugned Act, if there had been at any time a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam the sthanam would be deemed to be a tarwad. Not only there is no justification for enacting that non-existence of such a male heir at any point of time should put an end to the character of the sthanam, but the only decided case of the Madras High Court on the point recognized the right of a subsequently born male member in a tarwad to succeed to the sthanam and its properties52. Therefore, the three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved57. We declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams. | 1 | 26,237 | 2,724 | ### Instruction:
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is quite clear to us that that by itself does not make the Act a thing done in the exercise of judicial power. The legislature has the power to give retrospective operation to an Act. That of course interferes with vested rights but the legislature can interfere with such rights in the exercise of its legislative power.That is not adjudicating between parties affected by the Act. It is laying down the law to be followed by Courts in future. It is so nonetheless that the law is altered as from a past date. 78. Then it is said that the Act provides that it is to have effect notwithstanding any decision of the Court contrary to its provisions. That the Act no doubt does. Can it be said that it thereby adjudicates and not legislates? In Piare Dusadh v. Emperor, 1944-6 FCR 61: (AIR 1944 FC 1), it was pointed out that in India the legislature very often in the enactments that it makes sets aside decisions of Courts. In America a rule appears to obtain that "Legislative action cannot be made to retract on past controversies and so reverse decisions which the courts in the exercise of their undoubted authority have made": Cooleys Constitutional Limitation, 8th Ed. p.190. It was held in Piare Dusadhs case, 1944-6 FCR 61: (AIR 1944 FC 1), at p. 104 (of FCR): (at p. 9 of AIR) that this rule had no application in India. the observation there made may be set out:-"It is clear from the American authorities that this limitation has been derived from the interpretation placed by the American courts on what are known as the Fifth and fourteenth Amendments which provide against any person being "deprived of life, liberty or property without due process of law". The expression "due process of law" has been interpreted as referring only to "judicial process" and as not including legislation,........ As the requirement had been made part of the written constitution, it followed that no enactment passed by a legislature limited by that constitution could authorise anything in violation of it........... Hence the rule (stated by Cooley) that "it would be incompetent for the legislature, by retrospective legislation, to make valid any proceedings which had been had in the courts but which were void for want of jurisdiction over the parties. The constitutional position in India is different." 79. It seems to us that this observation of the Federal Court which no doubt was made with reference to the Government of India Act, 1935 applies with equal force to the position obtaining under our Constitution. It has been held by this Court that there is no scope under our Constitution for the application of the American concept of "due process of law". The American cases cited in support of the contention that a legislation cannot override judicial decisions therefore afford no assistance in our country. Article 31B Itself provides that it would apply notwithstanding any judgment, decree or order of any court to the countrary and it had been enacted by an Act passed by the Parliament. There have been many Acts passed since the Constitution came into force which contained similar provisions. In no case has it ever been contended that such an Act amounted to an exercise of the judicial function by the legislature. The Act before us lays down a law to be applied by courts in future in the adjudication of disputes between parties. It also says that the courts shall apply the law notwithstanding that there is an earlier decision on the rights of the parties which are being litigated upon in a subsequent proceeding. 80. The Act does not itself annul any decision of any court. All that it says is that the law laid down is to be applied by courts irrespective of any previous decision. It does not in any sense adjudicate between parties. It, therefore, seems to us that the contention that the impugned Act is really an exercise of judicial power is ill-founded. 81. In our view, the challenge brought against the impugned Act fails. Petition No. 443 of 1955 should therefore be dismissed with costs. 82. Coming now to the Petition No. 40 of 1956 the petitioners here are the wife and the 2 daughters of the petitioner in Petition No. 443 of 1955. The respondents are the junior members of the tarwad as also the Moopil Nayar. The petitioners claim as donees from the Moopil Nayar to be entitled to the sthanam lands in the Palghat area. It is not necessary for us to decide whether the petitioner in Petition No. 443 of 1955 had the right to make the gift in favour of his wife and daughters. That question has not been gone into by consent of the parties. If the gift is valid then what we have said earlier in connection with Petition No. 443 of 1955, will apply to this petition also and is must for the same reason fail. If the gift is invalid, the petition must fail on the ground that the Act has not affected the petitioners rights in any lands held by them. We would therefore dismiss that petition with costs except the costs of the hearing before us for all the 3 petitions were heard together. 83. Lastly, we come to Petition No. 41 of 1956. This petition must clearly be dismissed. It was filed by the son of the petitioner in Petition No. 443 of 1955 claiming to be entitled to the sthanam land situate in an area which was formerly part of the Cochin State. It is not in dispute that the impugned Act was never extended to that area. Therefore, whether the gift to him was valid or not, as to which we say nothing, the petitioner in this petition is not affected by that Act at all. His petition is clearly misconceived. His petition is therefore dismissed and he will pay the costs excepting the costs of the hearing. Order
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of a member of a tarwad, be blended with the property of the tarwad so as to make it a tarwad property, there is no direct decision. On principle if the sthanee, on attaining the sthanam is in the position of a separated member of a Hindu family, there may not be any scope for the application of the doctrine of blending. No member of a tarwad has any right to maintenance from out of the sthanam properties and the mere fact that a sthanee for the time being, out of generosity or otherwise, gives maintenance to one or other members of the tarwad cannot legally have the effect of converting the sthanam property into a tarwad property; nor the fact that the sthanam properties are treated as tarwad properties can have such a legal effect49. With this background let us look at the terms of the Act to see what it purports to do. What is the effect of the impugned Act? It is not the form that matters but the substance of it in its operation on the vested rights of citizens. The Act destroys the finality of decrees of Courts establishing the title of janmies to the sthanam properties. It affects the undisputed title of sthanees in sthanam properties, though they may not have obtained decrees in respect thereof. If statutorily confers title retrospectively on the members of the tarwad who had none before. It arbitrarily dislocates the title of particular sthanees in respect of certain sthanam with particular characteristics, which have no relation to the title of the sthanees. The first characteristic mentioned in the impugned Act is that there is or had been at any time an intermingling of the properties of the sthanam and the properties of the tarwad. If the word "intermingling" conveys only the idea of mere factual mixing up of the sthanam properties with the tarwad properties, it cannot, by any known legal notion of Marumakkathayam Law or on any analogy drawn from Hindu Law, convert the sthanam property into the tarwad property. Even if it is understood in the sense of blending, the sthanee, who ceases to be a member of the tarwad and is in a position of a separated member, cannot legally blend his property with that of the tarwad, for the legal concept of blending implies that the person who blends his property with that of the family is an undivided member of the family50. The second characteristic mentioned in the impugned Act is that the members have been receiving maintenance from properties purporting to be sthanam properties as of right or in pursuance of custom or otherwise. This characteristic is foreign to the concept of sthanam. No member of a tarwad is entitled as of right to any maintenance from out of properties of the sthanam. Under this clause, if maintenance is so received, the sthanam is deemed to be a tarwad on the basis that the receipt of maintenance from the sthanee out of the sthanam property brings about the said result. If a sthancee creates any such right a favour of a tarwad, it may bind him, but it cannot certainly be binding on the sthanam properties or its successor. If may custom be established on evidence, it may become an incident of the sthanam, but it cannot obliterate or extinguish it or convert it into a tarwad. The word "otherwise" in the context, it is contended, must be construed by applying the rule of ejusdem generis.The rule is that when general words follow particular and specific words of the same nature, the general words must be confined to the things of the same kind as those specified. But it is clearly laid down by decided cases that the specific words must form a distinct genus or category. It is not an inviolable rule of law, but is only permissible inference in the absence of an indication to the contrary.On the basis of this rule, it is contended, that the right or the custom mentioned in the clause is a distinct genus and the words "or otherwise" must be confined to things analogous to right or contract such as lost grant, immemorial user etc.It appears to us that the word "otherwise" in the context only means "whatever may be the origin of the receipt of maintenance". One of the objects of the legislation is to by-pass the decrees of courts and the Privy Council observed that the receipt of maintenance might even be out of bounty.It is most likely that a word of the widest amplitude was used to cover even acts of charity and bounty. If that be so, under the impugned Act even a payment of maintenance out of charity would destroy the character of an admitted sthanam which ex facie is expropriatory and unreasonable51. Nor does the third characteristic embody an unimpeachable test of the extinction of a sthanam or the conversion of the same into a tarwad. Under the impugned Act, if there had been at any time a vacancy caused by there being no male member of the tarwad eligible to succeed to the sthanam the sthanam would be deemed to be a tarwad. Not only there is no justification for enacting that non-existence of such a male heir at any point of time should put an end to the character of the sthanam, but the only decided case of the Madras High Court on the point recognized the right of a subsequently born male member in a tarwad to succeed to the sthanam and its properties52. Therefore, the three tests laid down by the impugned Act to enable the drawing of the statutory fiction are not only not germane but extraneous to the object sought to be achieved57. We declare that Madras Act 32 of 1955 is void and ultra vires the Constitution and issue a writ of mandamus restraining the State of Kerala from enforcing the provisions of the said Act against the petitioner and his sthanams.
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SRINIVASAN IYENGAR Vs. BIMLA DEVI AGARWAL | policy bearing contract No. 51168554, the medical report of complainant has been shown to be enclosed therein which has been issued by the Accused no. 11 Sales Manager of the Reliance Life Insurance Company Ltd.4.9 It was then further alleged that, on receipt of the said two policies, on being surprised, the complainant through her husband made contact with the office staff of Accused no. 1 in Tinsukia branch office and also called over the phone numbers from which the complainant received the calls in the month of August 2013 and November 2013 and enquired about the matter, but the caller misguided the complainant by saying that the said policies have been issued due to some mistake and also requested the complainant to bear with them for sometime as they are working over the matter and assured the complainant that she will get her amount back within a very short span of time.4.10 It was further alleged that, finding no other alternative, the complainant waited for sometime and made contact with these callers and asked them about her money but all the time the callers assured that the work is in progress and since the matter has been referred to their high officials for their sanction, so it will take some time. The complainant all the time with a hope that the company of such a reputation will definitely return her money, waited for the same.4.11 It was further alleged that, subsequently, on careful perusal of the policies, the complainant surprisingly noticed that neither she nor her husband nor her son ever signed any proposal form or any other documents which were required at the time of taking the life insurance policies, as per the rules and regulations of IRDA, nor even appeared for any medical examination before any doctor or hospital authority, but the policies were issued in the name of the complainant, moreover the booklet of policy containing the First Premium Receipt, policy schedule, proposal form, medical report are all Xerox copy and all the documents, even the First Premium Receipt and policy schedule do not bear any original signature of signatory i.e. Accused nos. 2 and 3 – Appellants herein.4.12 It was further alleged that, the proposal forms were shown to be signed by the complainant, but the complainant never signed over the said policies and it is abundantly clear that her signatures are forged for the wrongful gain by the accused persons. It has been further revealed that the accused persons in conspiracy with each other forged the signatures of the complainant, her husband and her son Sri Samir Bajaj with an intention to deceive them for the wrongful gain. The said policies were issued through Accused no. 4 and all the accused persons are related to each other and interested persons who are getting monetary benefits for the issuance of these life insurance policies and all the accused persons are involved in committing the crime of cheating, forgery, criminal misappropriation of money and criminal conspiracy. It is crystal clear that at the very inception of conversation with the complainant through her husband, the accused persons have been in conspiracy with each other and induced the complainant to deliver the cheques with an intention to deceive the complainant for the wrongful gain.5. That, thereafter, the Appellants herein – original Accused nos. 1 to 3 approached the High Court by way of Criminal Petition No. 634 of 2014 praying for quashing the criminal proceedings in exercise of its powers conferred under Section 482 CrPC. That by impugned judgment and order dated 28.01.2015, the High Court has dismissed the same and has refused to quash the criminal proceedings. Hence, the original Accused nos. 1 to 3 have preferred the present appeals.6. At the time of issuance of notice on 17.04.2015, this Court directed the Appellants to deposit a sum of Rs.3,75,000/- to be utilized, if necessary, for awarding costs to the Respondents complainant. It is reported that the Appellants have deposited the same with the Registry.7. Heard learned counsel appearing on behalf of both the parties at length.8. During the hearing of these appeals, the learned counsel for the Appellants agreed to pay to the original Complainant a total sum of Rs.10,00,000 (Rupees Ten lakh only) towards the full and final settlement of the claim of the original Complainant and it is agreed that, on such payment, the claimant will not proceed with the complaint any further and that the parties may be permitted to compound the offences.9. Learned counsel appearing on behalf of the original Complainant has stated that the original Complainant is agreeable to accept a total sum of Rs.10,00,000/- offered and that, on such payment, the complainant has no objection if the offences against the Appellants are compounded and the criminal proceedings initiated against them are quashed.10. Learned counsel appearing on behalf of the original Complainant has submitted that the Appellants may deposit a total sum of Rs.10,00,000/- in the bank account of the original Complainant, the particulars of whichare already on record, and on doing so, the Appellants may be permitted to withdraw the amount of Rs.3,75,000/- plus interest if any, already deposited by them.11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelming a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.12. We are of the opinion that on payment of total sum of Rs.10,00,000/- by the Appellants to the original Complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 and Gian Singh v. State of Punjab (2012) 10 SCC 303. | 1[ds]11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelming a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.12. We are of the opinion that on payment of total sum of Rs.10,00,000/- by the Appellants to the original Complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 and Gian Singh v. State of Punjab (2012) 10 SCC 303. | 1 | 2,055 | 155 | ### 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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policy bearing contract No. 51168554, the medical report of complainant has been shown to be enclosed therein which has been issued by the Accused no. 11 Sales Manager of the Reliance Life Insurance Company Ltd.4.9 It was then further alleged that, on receipt of the said two policies, on being surprised, the complainant through her husband made contact with the office staff of Accused no. 1 in Tinsukia branch office and also called over the phone numbers from which the complainant received the calls in the month of August 2013 and November 2013 and enquired about the matter, but the caller misguided the complainant by saying that the said policies have been issued due to some mistake and also requested the complainant to bear with them for sometime as they are working over the matter and assured the complainant that she will get her amount back within a very short span of time.4.10 It was further alleged that, finding no other alternative, the complainant waited for sometime and made contact with these callers and asked them about her money but all the time the callers assured that the work is in progress and since the matter has been referred to their high officials for their sanction, so it will take some time. The complainant all the time with a hope that the company of such a reputation will definitely return her money, waited for the same.4.11 It was further alleged that, subsequently, on careful perusal of the policies, the complainant surprisingly noticed that neither she nor her husband nor her son ever signed any proposal form or any other documents which were required at the time of taking the life insurance policies, as per the rules and regulations of IRDA, nor even appeared for any medical examination before any doctor or hospital authority, but the policies were issued in the name of the complainant, moreover the booklet of policy containing the First Premium Receipt, policy schedule, proposal form, medical report are all Xerox copy and all the documents, even the First Premium Receipt and policy schedule do not bear any original signature of signatory i.e. Accused nos. 2 and 3 – Appellants herein.4.12 It was further alleged that, the proposal forms were shown to be signed by the complainant, but the complainant never signed over the said policies and it is abundantly clear that her signatures are forged for the wrongful gain by the accused persons. It has been further revealed that the accused persons in conspiracy with each other forged the signatures of the complainant, her husband and her son Sri Samir Bajaj with an intention to deceive them for the wrongful gain. The said policies were issued through Accused no. 4 and all the accused persons are related to each other and interested persons who are getting monetary benefits for the issuance of these life insurance policies and all the accused persons are involved in committing the crime of cheating, forgery, criminal misappropriation of money and criminal conspiracy. It is crystal clear that at the very inception of conversation with the complainant through her husband, the accused persons have been in conspiracy with each other and induced the complainant to deliver the cheques with an intention to deceive the complainant for the wrongful gain.5. That, thereafter, the Appellants herein – original Accused nos. 1 to 3 approached the High Court by way of Criminal Petition No. 634 of 2014 praying for quashing the criminal proceedings in exercise of its powers conferred under Section 482 CrPC. That by impugned judgment and order dated 28.01.2015, the High Court has dismissed the same and has refused to quash the criminal proceedings. Hence, the original Accused nos. 1 to 3 have preferred the present appeals.6. At the time of issuance of notice on 17.04.2015, this Court directed the Appellants to deposit a sum of Rs.3,75,000/- to be utilized, if necessary, for awarding costs to the Respondents complainant. It is reported that the Appellants have deposited the same with the Registry.7. Heard learned counsel appearing on behalf of both the parties at length.8. During the hearing of these appeals, the learned counsel for the Appellants agreed to pay to the original Complainant a total sum of Rs.10,00,000 (Rupees Ten lakh only) towards the full and final settlement of the claim of the original Complainant and it is agreed that, on such payment, the claimant will not proceed with the complaint any further and that the parties may be permitted to compound the offences.9. Learned counsel appearing on behalf of the original Complainant has stated that the original Complainant is agreeable to accept a total sum of Rs.10,00,000/- offered and that, on such payment, the complainant has no objection if the offences against the Appellants are compounded and the criminal proceedings initiated against them are quashed.10. Learned counsel appearing on behalf of the original Complainant has submitted that the Appellants may deposit a total sum of Rs.10,00,000/- in the bank account of the original Complainant, the particulars of whichare already on record, and on doing so, the Appellants may be permitted to withdraw the amount of Rs.3,75,000/- plus interest if any, already deposited by them.11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelming a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.12. We are of the opinion that on payment of total sum of Rs.10,00,000/- by the Appellants to the original Complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 and Gian Singh v. State of Punjab (2012) 10 SCC 303.
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11. Having heard the learned counsel appearing on behalf of the respective parties and that now the parties have settled the dispute amicably and that the dispute between the parties seems to be having predominant element of a civil dispute and the origin is predominantly or overwhelming a civil dispute, we are of the opinion that this is a fit case to exercise the power under Article 142 of the Constitution of India to meet the ends of justice.12. We are of the opinion that on payment of total sum of Rs.10,00,000/- by the Appellants to the original Complainant, as agreed between the parties, the criminal proceedings be quashed, considering the decisions of this Court in the case of Parbatbhai Aahir v. State of Gujarat (2017) 9 SCC 641 and Gian Singh v. State of Punjab (2012) 10 SCC 303.
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State Of Goa Vs. Sanjay Thakran | around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 : "9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court." 29. We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime. | 1[ds]25. From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place by any third party, then a relatively wider time gap would not affect the prosecution case.26. We will first consider the applicability of the last seen together doctrine with respect to the murder of D-1-Vikas Nanda. According to P.W.14-Calvert Gonsalves, A-1 and D-1 were present outside the Hotel lguana Miraj at around 9.30 p.m. and as told to him by D-1, A-2 and D-2 were sitting inside one of the rooms of the hotel. P.W.11-Dinesh Adhikari has also stated that after serving drinks to A-1, P.W-14 and D-1, he went away. He returned to the hotel at around 9.00-9.30 p.m. and found that only A-1 and D-1 were sitting outside the hotel and P.W.-14 had gone away. He has also mentioned that A-2 and D-2 were sitting inside a room of the hotel. According to P.W.-11, and D-1 started walking towards the beach after some time when he saw them sitting together at around 9.00-9.30 p.m. After about 30 to 45 minutes, he saw A-1 alone in the hotel. According to the prosecution version, A-1 murdered D-1 by drowning him in the shallow beach water. However, it is highly improbable that A-1, who at the relevant time was in his late 30s, was able to overpower D-1 who was not only well-built but also about 10 years younger and taller than him. We have also noticed that when the dead body of D-1 was recovered. It had no clothes except an undergarment. It is highly unlikely that a single person not only forcefully drowned the deceased D-1 in the shallow beach water but also forced him to take out all the clothes and ornaments which he was wearing at that time. The post-mortem report also does not mention any serious injury on any of the vital parts of D-1 to support the prosecution version. It is clear from the deposition of P.W.-11 that A-1 went along with D-1. P.W.-14 has also stated that A-2 and D-2 were sitting inside a room of the hotel. From this evidence; it is clear that A-1 had no role whatsoever to play with reference to the murder of D-1-Vikas Nanda, especially when the prosecution has not been able to produce any material or evidence to establish the fact that they either pre-planned a plot or conspired with each other to murder the deceased couple to carve away their valuable materials. We have also not found any other link in the chain of circumstances to conclusively establish that A-1 murdered D-1 or A-2 played any role in assisting him to murder D-1. Even if we believe the evidence of P.W.-11 that he saw D-1 in the company of A-1 walking towards the beach and thereafter saw A-1 returning alone after 30 to 45 minutes. there has been a time gap of about 2 1/4 hours when A-1 and D-1 were last seen together and when the dead body of D-1 was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court.We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime. | 1 | 10,983 | 2,011 | ### 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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around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 : "9. The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court." 29. We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime.
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was found at around 00.30 a.m. at the Benaulim Beach. No evidence was led by the prosecution to prove the fact that there was no possibility of any other person approaching D-1 on the beach which is a public place, during the intervening period when A-1 was last seen with the deceased and when the crime was detected.27. We shall now weigh the last seen doctrine with respect to D-2-Priya Nanda. According to P.W.-11, afer about 30 to 45 minutes when he saw A-1 and D-1 walking towards the beach, he had seen A-1 alone while A-2 was sitting with D-2 in the hotel. After some time, he saw the accused persons and D-2 walking away from lguana Miraj Hotel. We can safety assume that P.W.-11 saw both the accused persons along with D-2 latest by around 10.30-11.00 p.m. P.W.-6 Amit Banerjee had only a momentary glance of the lady sitting in the Maruti car who, according to the prosecution, came to Hotel Seema on 27.02.1999 with D-2 with a male person allegedly A-1. P.W.-6 has mentioned that the guard of the hotel had and opportunity to see the persons who came along with D-2. However, the prosecution chose not to examine the guard to identify either A-1 or A-2. It is difficult to believe P.W.-6 that he had seen A-2 sitting in the car when he had got an opportunity to look at her for merely one to two minutes. In his statement, he has described her as a lady with short hair. He has not given any description indicating that he had seen somebody sitting in the car whose face was visible from one side. Even when he was examined by the police, he had not described the features of A-2. In the absence of any other supporting material on record, it will not be possible to believe the statement of P.W.-6 that he had seen A-2 sitting in the car on the night of 27.02.1999 to establish the fact that when D-2 left the hotel she accompanied A-2. Similarly, with respect to A-1, P.W.-6 who had an opportunity to see A-1 for the first time for a very short duration to recognize him to be a person who accompanied D-2 to Hotel Seema on the night of 27.2.1999, he was busy in setting the account with her. That apart, the dead body of D-2 was found at around 7.30 a.m. on 28.02.1999 at Vagator Beach, around 60 kms. from the beach where the dead body of D-1 was recovered and quite a long distance from Hotel Seema. Hence, there has been a considerable time gap of approximately 8 1/2 hours when D-2 was last seen alive with the accused couple. There being a considerable time gap, between the persons seen together and the proximate time of crime, the circumstances of last seen together, even if proved, cannot clinchingly fasten the guilt on the accused.28. It is urged by Mr. Mahendra Anand, the learned senior counsel for the appellant(s), that the accused have not explained as to in what circumstances the victims suffered have not explained as to in what circumstances the victims suffered the death in their statements under Section 313 Cr. P.C. and thus would be held to be liable for homicide. The learned senior counsel for the appellant(s) placed reliance on the following observations of this Court made in Amrit alias Ammu v. State of Maharashtra (2003) 8 SCC 93 The learned counsel for the appellant has placed reliance on the decision of this Court by a Bench of which one of us (Justice Brijesh Kumar) was member in Mohibur Rahman v. State of Assam, (2002) 6 SCC 715 for the proposition that the circumstance of last seen does not be itself necessarily lead to the inference that it was the accused who committed the crime. It depends upon the facts of each case. In the decision relied upon it has been observed that there may be persuaded to reach an irresistible conclusion that either the accused should explain how and in what circumstances the victim suffered the death or should own the liability for the homicide. The present is a case to which the observation as aforesaid and the principle laid squarely applies and the circumstances of the case cast a heavy responsibility on the appellant to explain and in absence thereof suffer the conviction. Those circumstances have already been noticed, in which case such an irresistible conclusion can be reached will depend on the facts of each case. Here it has been established that the death took place on 28th March between 3 and 4 p.m. It is just about that much time that the appellant and the deceased were last seen by PW 1 and PW 11. No explanation has been offered in the statement by the appellant recorded under Section 313 Cr. PC. His defence is of complete denial. In our view, the conviction for offence under Sections 302 and 376 has been rightly recorded by the Court of Session and affirmed by the High Court.We have noticed the decision. However, the circumstances in the present case are not similar to the case where the event of the last seen together has very close proximity with the time and place of the commission of the crime and other circumstances also favour the hypothesis of guilt and consequently the fact that no explanation or false explanation offered by the accused was taken as a link in the chain of circumstances. [See also : Birbal v. State of M.P., (2000) 10 SCC 212; Raju v. State of Haryana, (2001) 9 SCC 50 ; and Babu S/o Raveendran v. Babu S/o Bahuleyan and Another (2003) 7 SCC 37 ]. Thus, in the circumstances of the case, the accused persons not giving any explanation in their examination under Section 313, Cr. P.C. could not be taken to be a circumstances pointing towards irresistible conclusion that they are involved in the commission of the crime.
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U.P. State Tourism Development Corpn Vs. I.B. Misra | High Court in coming to the aforesaid conclusion stands on a different footing. In that case, in clause (1) of Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981, there were three modes for appointment to the post of Assistant Housing Commissioner (Technical), [now Superintendent Engineer] namely, (i) by promotion of employees working as Executive Engineer in Boards Higher Services on the basis of seniority-cum- merit; (ii) by calling Executive Engineer on deputation from State Building and Communication Department (iii) by direct selection from amongst the candidate called for interview. In clause (3) of Regulation 3 of the said Regulations, it was expressly provided : "If a suitable candidate is not available for appointment by promotion from amongst the Executive Engineers of the Housing Board, a panel of names of Executive Engineers having at least 4 years, standing experience from the State B & C Department may be called for with a proviso that no departmental inquiry should be pending against him. One of the vacancy will be selected by the Board and the selected candidate will be appointed by the Board." 11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court. In Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., 1989 (4) SCC 635 , it has been observed :- "A person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management must less any career planning, manpower development, management development etc. which is not related to a system of promotions." Similarly in Dr. Ms. O.Z. Hussain v. Union of India, 1990 Supp. SCC 688, it has been said :- "This Court has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service." 14. But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations. | 1[ds]11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court.But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations. | 1 | 3,128 | 636 | ### 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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High Court in coming to the aforesaid conclusion stands on a different footing. In that case, in clause (1) of Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981, there were three modes for appointment to the post of Assistant Housing Commissioner (Technical), [now Superintendent Engineer] namely, (i) by promotion of employees working as Executive Engineer in Boards Higher Services on the basis of seniority-cum- merit; (ii) by calling Executive Engineer on deputation from State Building and Communication Department (iii) by direct selection from amongst the candidate called for interview. In clause (3) of Regulation 3 of the said Regulations, it was expressly provided : "If a suitable candidate is not available for appointment by promotion from amongst the Executive Engineers of the Housing Board, a panel of names of Executive Engineers having at least 4 years, standing experience from the State B & C Department may be called for with a proviso that no departmental inquiry should be pending against him. One of the vacancy will be selected by the Board and the selected candidate will be appointed by the Board." 11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court. In Council of Scientific and Industrial Research & Anr. v. K.G.S. Bhatt & Anr., 1989 (4) SCC 635 , it has been observed :- "A person is recruited by an organisation not just for a job, but for a whole career. One must, therefore, be given an opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward. The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors. There cannot be any modern management must less any career planning, manpower development, management development etc. which is not related to a system of promotions." Similarly in Dr. Ms. O.Z. Hussain v. Union of India, 1990 Supp. SCC 688, it has been said :- "This Court has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service." 14. But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations.
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11. This Court construed clause (1) of Regulation 3 in the light of clause (3) of the said Regulation to hold that the post must be filled by promotion of eligible Executive Engineers of the Housing Board on the basis of seniority-cum-merit and it is only if no suitable candidate is available from amongst the Executive Engineers of the Housing Board that the appointment should be made on deputation from amongst the Executive Engineers of the State Building and Communication Department and failing this, the appointment can be made by direct selection amongst the candidates called for interview. The language used in Rule 19 of the Rules is, however, different from that used in Regulation 3 of the Gujarat Housing Board Services Classifications of and Recruitment Regulations, 1981 which was considered by this Court in Gujarat Housing Board Engineers Association & Anr. v. State of Gujarat (supra). There is no provision in Rule 19 of the Rules providing for promotion as a mode of appointment. Moreover, in Rule 19 there is no provision similar to clause (3) of Regulation 3 of the said Regulations and it is left to the Corporation to make appointment on Class I post either by selection or by deputation. The fact that ever since 1981 no appointment has been made by selection and all appointments on the post of General Manager have been made on deputation would not justify construing Rule 19 in the way the High Court has construed it.12. It is no doubt true that as a result of appointments that have been made on the post of General Manager by deputation the other mode of appointment, namely, by selection, as provided in Rule 19, has been rendered otiose. Shri R.K. Jain, the learned senior counsel appearing for the appellant, has submitted that the Corporation has preferred appointment on the post of General Manager by deputation in order to secure officers having high level of administrative ability from the State Government because for the post of General Manager a person with high administrative capacity is needed and furthermore an officer appointed on deputation, if he is not found suitable for the job, can be sent back at any time but this may not be possible if regular appointment is made by selection. Having regard to the aforesaid submissions made by Shri Jain we are unable to hold that the Corporation has been acting arbitrarily in making appointments on the post of General Manager by deputation and in not resorting to the process of selection for making such appointment.13. The High Court has observed that the present policy of making appointment on the post of General Manager by deputation would result in impairing the efficiency of the person holding a post just below the post of General Manager because he knows that he would never be appointed on the post of General Manager and would have to stagnate on that post forever. The High Court has pointed out that avenue of promotion is one of the methods by means of which a person shows his skill and efficiency. These observations are in consonance with the law laid down by this Court.But this does not justify reading into Rule 19 the requirement that appointment on the post of General Manager should be made by promotion and if no suitable person was available appointment may be made by deputation. That is a matter which appertains to the promotion policy to be adopted by the Corporation. It is expected that the Corporation while revising its promotion policy will keep in view these observations.
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B.K. PAVITRA Vs. UNION OF INDIA | of Indra Sawhney holds that the creamy layer principle is a principle of equality. 138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of Article 16 (4A) and held thus: 34…We may hasten to add that Shri Dwivedis argument cannot be confused with the concept of creamy layer which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. (Emphasis supplied) 139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I. Retrospectivity 140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected. In this context, we must note from the earlier decisions of this Court that: (i) The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; (ii) The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule; and (iii) In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. 141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional. 142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded J. Over representation in KPTCL and PWD 143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well K. Conclusion | 0[ds]60. Besides the Governor, the legislatures of the States consist of a bicameral legislature for some States and a unicameral legislature for others.62. Where a Bill is not a Money Bill, the Governor may return the Bill for reconsideration upon which the House or Houses, as the case may be, will reconsider the desirability of introducing the amendments which the Governor has recommended. If the Bill is passed again by the House (or Houses as the case may be), the Governor cannot thereafter withhold assent. The second proviso to Article 200 stipulates that the Governor must not assent to a Bill but necessarily reserve it for the consideration of the President if the Bill upon being enacted would derogate from the powers of the High Court in a manner thatendangers its position under the Constitution. Save and except for Bills falling within the description contained in the second proviso (where the Governor must reserve the Bill for consideration of the President), a discretion is conferred upon the Governor to follow one of the courses of action enunciated in the substantive part of Article 200. Aside from Bills which are covered by the second proviso, where the Governor is obliged to reserve the Bill for the consideration of the President, the substantive part of Article 200 does not indicate specifically, the circumstances in which the Governor may reserve a Bill for the consideration of the President. The Constitution has entrusted this discretion to the Governor.63. The framers carefully eschewed defining the circumstances in which the Governor may reserve a Bill for the consideration of the President. By its very nature the conferment of the power cannot be confined to specific categories. Exigencies may arise in the working of the Constitution which justify a recourse to the power of reserving a Bill for the consideration of the President. They cannot be foreseen with the vision of a soothsayer. The power having been conferred upon a constitutional functionary, it is conditioned by the expectation that it would be exercised upon careful reflection and for resolving legitimate concerns in regard to the validity of the legislation. The entrustment of a constitutional discretion to the Governor is premised on the trust that the exercise of authority would be governed by constitutional statesmanship. In a federal structure, the conferment of this constitutional discretion is not intended to thwart democratic federalism. The state legislatures represent the popular will of those who elect their representatives. They are the collective embodiments of that will. The act of reserving a Bill for the assent of the President must be undertaken upon careful reflection, upon a doubt being entertained by the Governor about the constitutional legitimacy of the Bill which has been passed.64. Dr Dhavan in the course of his submissions, has dwelt at length on the power which is entrusted to the Governor to reserve a Bill for the consideration of the President under Article 254 (2). Article 254 (2) deals with a situation where a law which has been enacted by the legislature of a state on a matter which is enumerated in the Concurrent List of the Seventh Schedule contains any provision which is repugnant either to an earlier law made by Parliament or an existing law with respect to that matter. In such an eventuality, the law made by the legislature of the state can prevail in that state only if it has received the assent of the President on being reserved for consideration.68. Hoechst is an authority for the proposition that the assent of the President is non - justiciable. Hoechst also lays down that even if, as it turns out, it was not necessary for the Governor to reserve a Bill for the consideration of the President, yet if it was reserved for and received the assent of the President, thelaw as enacted cannot be regarded as unconstitutional for want of =proper assent70. The state government, in the course of its clarifications, was of the view that there was no necessity of reserving the Bill for the consideration of the President, since in its view, the Governor had not recorded a finding that it was unconstitutional, or fell afoul of existing central legislation on the subject or that it was beyond legislative competence or derogated from the fundamental rights. All procedural requirements under the Constitution were according to the government duly complied with. This objection of the state government cannot cast doubt upon the grant of assent by the President. The law having received the assent of the President, the submissions which were urged on behalf of the petitioners cannot be countenanced.71. The foundation of the decision in B K Pavitra I is the principle enunciated in Nagaraj that in order to sustain the exercise of the enabling power contained in Article 16 (4A), the state is required to demonstrate a compelling necessity by collecting quantifiable data on: (i) inadequacy of representation; (ii) backwardness; and (iii) overall efficiency. The judgment in B K Pavitra I held that no such exercise was undertaken by the State of Karnataka before providing for reservation in promotion and providing for consequential seniority. On the ground that the state had not collected quantifiable data on the three parameters enunciated in Nagaraj, the Reservation Act 2002 was held to be unconstitutional. The Constitution Bench in Nagaraj upheld the validity of Article 16 (4A) on the basis that before taking recourse to the enabling power the state has to carry out the exercise of collecting quantifiable data and fulfilling the three parameters noted above. B K Pavitra I essentially held that there was a failure on the part of the state to undertake this exercise, which was a pre-condition for the exercise of the enabling power to make reservations in promotions and to provide for consequential seniority72. The decision in B K Pavitra I did not restrain the state from carrying out the exercise of collecting quantifiable data so as to fulfil the conditionalities for the exercise of the enabling power under Article 16 (4A). The legislature has the plenary power to enact a law. That power extends to enacting a legislation both with prospective and retrospective effect. Where a law has been invalidated by the decision of a constitutional court, the legislature can amend the law retrospectively or enact a law which removes the cause for invalidation. A legislature cannot overrule a decision of the court on the ground that it is erroneous or is nullity. But, it is certainly open to the legislature either to amend an existing law or to enact a law which removes the basis on which a declaration of invalidity was issued in the exercise of judicial review. Curative legislation is constitutionally permissible. It is not an encroachment on judicial power. In the present case, state legislature of Karnataka, by enacting the Reservation Act 2018, has not nullified the judicial decision in B K Pavitra I, but taken care to remedy the underlying cause which led to a declaration of invalidity in the first place. Such a law is valid because it removes the basis of the decision.74. The legislature has the power to validate a law which is found to be invalid by curing the infirmity. As an incident of the exercise of this power, the legislature may enact a validating law to make the provisions of the earlier law effective from the date on which it was enacted (The United Provinces v Mst Atiqa Begum AIR 1941 FC 16and Rai Ramkrishna v State of Bihar (1964) 1 SCR 897 ). These principles were elucidated in the decision of this Court in Prithvi Cotton Mills Ltd. The judgment makes a distinction between a law which simply declares that a decision of the court will not bind (which is impermissible for the legislature) and a law which fundamentally alters the basis of an earlier legislation so that the decision would not have been given in the altered circumstances. This distinction is elaborated in the following extract:4. … Granted legislative competence, it is not sufficient to declare merely that the decision of the Court shall not bind for that is tantamount to reversing the decision in exercise of judicial power which the Legislature does not possess or exercise. A courts decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. Ordinarily, a court holds a tax to be invalidly imposed because the power to tax is wanting or the statute or the rules or both are invalid or do not sufficiently create the jurisdiction. Validation of a tax so declared illegal may be done only if the grounds of illegality or invalidity are capable of being removed and are in fact removed and the tax thus made legal76. A declaration by a court that a law is constitutionally invalid does not fetter the authority of the legislature to remedy the basis on which the declaration was issued by curing the grounds for invalidity. While curing the defect, it is essential to understand the reasons underlying the declaration of invalidity. The reasons constitute the basis of the declaration. The legislature cannot simply override the declaration of invalidity without remedying the basis on which the law was held to be ultra vires. A law may have been held to be invalid on the ground that thelegislature which enacted the law had no legislative competence on the subject matter of the legislation. Obviously, in such a case, a legislature which has been held to lack legislative competence cannot arrogate to itself competence over a subject matter over which it has been held to lack legislative competence. However, a legislature which has the legislative competence to enact a law on the subject can certainly step in and enact a legislation on a field over which it possesses legislative competence. For instance, where a law has been invalidated on the ground that the state legislature lacks legislative competence to enact a law on a particular subject – Parliament being conferred with legislative competence over the same subject – it is open for the Parliament, following a declaration of the invalidity of the state law, to enact a new law and to regulate the area. As an incident of its validating exercise, Parliament may validate the collection of a levy under the earlier law. The collection of a levy under a law which has been held to be invalid is validated by the enactment of legislation by a legislative body – Parliament in the above example – which has competence over the subject matter. Apart from legislative competence, a law may have been declared invalid on the ground that there was a breach of the fundamental rights contained in Part III of the Constitution. In that situation, if the legislature proceeds to enact a new law on the subject, the issue in essence is whether the re-enacted law has taken care to remove the infractions of the fundamental rights on the basis of which the earlier law was held to be invalid. The true test therefore is whether the legislature has acted within the bounds of its authority to remedy the basis on which the earlier law was held to suffer from a constitutional infirmity.78. The decision in Madan Mohan Pathak is hence distinguishable from the facts of the present case. The above observations recognized the constitutional position that in the case of a declaratory judgment holding an action to be invalid, a validating legislation to remove the defect is permissible. Applying this principle, it is evident that the decision in B K Pavitra I declared the Reservation Act 2002 to be invalid and consequent upon the declaration of invalidity, certain directions were issued. If the basis on which Reservation Act 2002 was held to be invalid is cured by a validating legislation, in this case the Reservation Act 2018, this would constitute a permissible legislative exercise. The grounds which weighed in Madan Mohan Pathak would hence not be available in the present case80. Madan Mohan Pathak involved a situation where a parliamentary law was enacted to override a mandamus which was issued by the High Court for thepayment of bonus under an industrial settlement. The case did not involve a situation where a law was held to be ultra vires and the basis of the declaration of invalidity of the law was sought to be curedDr Dhavan is entirely correct, if we may say so with respect, in submitting that what has to be shown is whether the Reservation Act 2018 is, in law Articles 14 and 16 compliant. This necessitates an examination of the constitutionality of the Reservation Act 2018. That would require this Court to examine the challenge on the ground that there has been a violation of the equality code contained in Articles 14 and 16.Is the basis of B K Pavitra I cured in enacting the Reservation Act 201882. The Statement of Objects and Reasons of the Reservation Act 2018 refers to the legislative history preceding its enactment. The Ratna Prabha Committeewas constituted after the Reservation Act 2002 was held to be invalid in B K Pavitra I on the ground that no compelling necessity had been shown by the state to provide for reservation in matters of promotion for SCs and STs by collecting and analysing relevant data to satisfy the requirements laid out in Nagaraj. The constitution of the Ratna Prabha Committee was consequent upon the Reservation Act 2002 having been held to be invalid in B K Pavitra IThe decision of the Constitution Bench in Nagaraj mandates that before the State can take recourse to the enabling power contained in Clauses (4A) and (4B) of Article 16, it must demonstrate the existence of compelling reasons on three facets: (i) backwardness; (ii) inadequacy of representation; and (iii) overall administrative efficiency. In Jarnail, the Constitution Bench clarified that the first of the above factors – backwardness has no application in the case of reservations for the SCs and STs. Nagaraj to that extent was held to be contrary to the decision of the larger Bench in Indra Sawhney.The Ratna Prabha Committee report90. Based on the above features, the petitioners have invoked the power of judicial review. Dr Dhavan emphasized that the decision in Nagaraj upheld the constitutional validity of successive constitutional amendments to Article 16conditional upon the existence of compelling reasons which must be demonstrated by the State by collecting and analysing relevant data. It is submitted that the flaws in the report of the Ratna Prabha Committee would indicate that the compelling reasons which constitute the foundation for the exercise of the enabling power contained in Article 16 are absent, which must result in the invalidation of the Reservation Act 201893. The second of the reinforcing principles which emerges from Indra Sawhney is that the opinion of the government on the adequacy of representation of the SCs and STs in the public services of the state is a matter which forms a part of the subjective satisfaction of the state. Significantly, the extract from Indra Sawhney reproduced earlier adverts to the decision in Barium Chemicals Ltd, which emphasises that when an authority is vested with the power to form an opinion, it is not open for the court to substitute its own opinion for that of the authority, nor can the opinion of the authority be challenged on grounds of propriety or sufficiency.95. In dealing with the submissions of the petitioners on this aspect, it is relevant for this Court to recognize the circumspection with which judicial power must be exercised on matters which pertain to propriety and sufficiency, in the context of scrutinizing the underlying collection of data by the State on the adequacy of representation and impact on efficiency. The Court, is above all, considering the validity of a law which was enacted by the State legislature for enforcing the substantive right to equality for the SCs and STs. Judicial review must hence traverse conventional categories by determining as to whether the Ratna Prabha Committee report considered material which was irrelevant or extraneous or had drawn a conclusion which no reasonable body of persons could have adopted. In this area, the fact that an alternate line of approach was possible or may even appear to be desirable cannot furnish a foundation for the assumption by the court of a decision making authority which in the legislative sphere is entrusted to the legislating body and in the administrative sphere to the executive arm of the government99. We find merit in the above submissions. The methodology which was adopted by the Ratna Prabha Committee has not been demonstrated to be alien to conventional social science methodologies. We are unable to find that the Committee has based its conclusions on any extraneous or irrelevant material. In adopting recourse to sampling methodologies, the Committee cannot be held to have acted arbitrarily. If, as we have held above, sampling is a valid methodology for collection of data, the necessary consequence is that the exercise cannot be invalidated only on the ground that data pertaining to a particular department or of some entities was not analysed. The data which was collected pertained to thirty one departments which are representative in character. The State has analysed the data which is both relevant and representative, before drawing its conclusions. As we have noted earlier, there are limitations on the power of judicial review in entering upon a factual arena involving the gathering, collation and analysis of data.101. We are of the view that once an opinion has been formed by the State government on the basis of the report submitted by an expert committee which collected, collated and analysed relevant data, it is impossible for the Court to hold that the compelling reasons which Nagaraj requires the State to demonstrate have not been established. Even if there were to be some errors in data collection, that will not justify the invalidation of a law which the competent legislature was within its power to enact. After the decision in B K Pavitra I, the Ratna Prabha Committee was correctly appointed to carry out the required exercise. Once that exercise has been carried out, the Court must be circumspect in exercising the power of judicial review to re-evaluate the factual material on record.102. The adequacy of representation has to be assessed with reference to a benchmark on adequacy. Conventionally, the State and the Central governments have linked the percentage of reservation for the SCs and STs to their percentage of population, as a measure of adequacy. The Constitution Bench noticed this in Sabharwal, where it observed:4. When a percentage of reservation is fixed in respect of a particular cadre and the roster indicates the reserve points, it has to be taken that the posts shown at the reserve points are to be filled from amongst the members of reserve categories and the candidates belonging to the general category are not entitled to be considered for the reserved posts. On the other hand the reserve category candidates can compete for the non-reserve posts and in the event of their appointment to the said posts their number cannot be added and taken into consideration for working out the percentage of reservation. Article 16 (4) of the Constitution of India permits the State Government to make any provision for the reservation of appointments or posts in favour of any Backward Class of citizens which, in the opinion of the State is not adequately represented in the Services under the State. It is, therefore, incumbent on the State Government to reach a conclusion that the Backward Class/Classes for which the reservation is made is not adequately represented in the State Services. While doing so the State Government may take the total population of a particular Backward Class and its representation in the State Services. When the State Government after doing the necessary exercise makes the reservation and provides the extent of percentage of posts to be reserved for the said Backward Class then the percentage has to be followed strictly. The prescribed percentage cannot be varied or changed simply because some of the members of the Backward Class have already been appointed/promoted against the general seats. As mentioned above the roster point which is reserved for a Backward Class has to be filled by way of appointment/promotion of the member of the said class. No general category candidate can be appointed against a slot in the roster which is reserved for the Backward ClassExplaining this further, the Constitution Bench held:5...Once the prescribed percentage of posts is filled the numerical test of adequacy is satisfied and thereafter the roster does not survive. The percentage of reservation is the desired representation of the Backward Classes in the State Services and is consistent with the demographic estimate based on the proportion worked out in relation to their population. The numerical quota of posts is not a shifting boundary but represents a figure with due application of mind. Therefore, the only way to assure equality of opportunity to the Backward Classes and the general category is to permitthe roster to operate till the time the respective appointees/promotees occupy the posts meant for them in the roster…Consequently, it is open to the State to make reservation in promotion for SCs and STs proportionate to their representation in the general populationHence, the submission that the quota must be reckoned on the basis of the posts which are actually filled up and not the sanctioned posts cannot be accepted.104. We find no merit in the challenge to the Ratna Prabha Committee report on the ground that the collection of data was on the basis of groups A, B, C and D as opposed to cadres. For one thing, the expression =cadre has no fixed meaning ascribed to it in service jurisprudence. But that apart, Nagaraj requires the collection of quantifiable data inter alia, on the inadequacy of representation in services under the state. Clause 4A of Article 16 specifically refers to the inadequacy of representation in the services under the state. The collection of data on the basis of groups A to D does not by its very nature exclude data pertaining to cadres. The state has studied in the present case the extent of reservation for SCs and STs in groups A to D, consisting of several cadres. Since, the group includes posts in all the cadres in that group, it can logically be presumed that the state has collected quantifiable data on the representation of SCs and STs in promotional posts in the cadres as well.105. Another facet of the matter is that in the judgment of Justice Jeevan Reddy in Indra Sawhney, it was observed that reservation under Article 16 (4) does not operate on communal grounds. Hence, if a member belonging to a reserved category is selected in the general category, the selection would not count against the quota prescribed for the reserved category. The decision in Sabharwal also noted that while candidates belonging to the general category are not entitled to fill reserved posts, reserved category candidates are entitled to compete for posts in the general category. In several group D posts, such as municipal sweepers, the sobering experience of administration is that the overwhelmingly large segment of applicants consists of persons belonging to the SCs and STs. Over representation in group D posts as a result of candidates belonging to the general category staying away from those posts cannot be a valid or logical basis to deny promotion to group D employees recruited from the reserved categorySubstantive versus formal equality107. For equality to be truly effective or substantive, the principle must recognise existing inequalities in society to overcome them. Reservations are thus not an exception to the rule of equality of opportunity. They are rather the true fulfilment of effective and substantive equality by accounting for thestructural conditions into which people are born. If Article 16(1) merely postulates the principle of formal equality of opportunity, then Article 16(4) (by enabling reservations due to existing inequalities) becomes an exception to the strict rule of formal equality in Article 16 (1). However, if Article 16 (1) itself sets out the principle of substantive equality (including the recognition of existing inequalities) then Article 16 (4) becomes the enunciation of one particular facet of the rule of substantive equality set out in Article 16 (1).108. During the debates on the principles of equality underlying Article 16 (then draft Article 10), certain members of the Assembly recognised that in order to give true effect to the principle of equality of opportunity, the Constitution had to expressly recognise the existing inequalities.109. By recognising that formal equality of opportunity will be insufficient in fulfilling the transformative goal of the Constitution, these members recognised that the conception of equality of opportunity must recognise and account for existing societal inequalities. The most revealing debates as to how the Constituent Assembly understood equality of opportunity under the Constitution took place on 30 November 1948. Members debated draft article 10 (which would go on to become Article 16 of the Constitution). In these debates, some members understood sub-clause (4) (providing for reservations) as an exception to the general rule of formal equality enunciated in sub-clause (1).The Constitution as a transformative instrument111. The Constitution is a transformative document. The realization of its transformative potential rests ultimately in its ability to breathe life and meaning into its abstract concepts. For, above all, the Constitution was intended by its draftspersons to be a significant instrument of bringing about social change in a caste based feudal society witnessed by centuries of oppression of and discrimination against the marginalised. As our constitutional jurisprudence has evolved, the realisation of the transformative potential of the Constitution has been founded on the evolution of equality away from its formal underpinnings to its substantive potential118. The proviso recognises that special measures need to be adopted for considering the claims of SCs and STs in order to bring them to a level playing field. Centuries of discrimination and prejudice suffered by the SCs and STs in a feudal, caste oriented societal structure poses real barriers of access to opportunity. The proviso contains a realistic recognition that unless special measures are adopted for the SCs and STs, the mandate of the Constitution for the consideration of their claim to appointment will remain illusory. The proviso, in other words, is an aid of fostering the real and substantive right to equality to the SCs and STs. It protects the authority of the Union and the States to adopt any of these special measures, to effectuate a realistic (as opposed to a formal) consideration of their claims to appointment in services and posts under the Union and the states. The proviso is not a qualification to the substantive part of Article 335 but it embodies a substantive effort to realise substantive equality. The proviso also emphasises that the need to maintain the efficiency of administration cannot be construed as a fetter on adopting these special measures designed to uplift and protect the welfare of the SCs and STs.119. The Constitution does not define what the framers meant by the phrase efficiency of administration. Article 335 cannot be construed on the basis of a stereotypical assumption that roster point promotees drawn from the SCs and STs are not efficient or that efficiency is reduced by appointing them. This is stereotypical because it masks deep rooted social prejudice. The benchmark for the efficiency of administration is not some disembodied, abstract ideal measured by the performance of a qualified open category candidate. Efficiency of administration in the affairs of the Union or of a State must be defined in an inclusive sense, where diverse segments of society find representation as a trueaspiration of governance by and for the people. If, as we hold, the Constitution mandates realisation of substantive equality in the engagement of the fundamental rights with the directive principles, inclusion together with the recognition of the plurality and diversity of the nation constitutes a valid constitutional basis for defining efficiency. Our benchmarks will define our outcomes. If this benchmark of efficiency is grounded in exclusion, it will produce a pattern of governance which is skewed against the marginalised. If this benchmark of efficiency is grounded in equal access, our outcomes will reflect the commitment of the Constitution to produce a just social order. Otherwise, our past will haunt the inability of our society to move away from being deeply unequal to one which is founded on liberty and fraternity. Hence, while interpreting Article 335, it is necessary to liberate the concept of efficiency from a one sided approach which ignores the need for and the positive effects of the inclusion of diverse segments of society on the efficiency of administration of the Union or of a State. Establishing the position of the SCs and STs as worthy participants in affairs of governance is intrinsic to an equal citizenship. Equal citizenship recognizes governance which is inclusive but also ensures that those segments of our society which have suffered a history of prejudice, discrimination and oppression have a real voice in governance. Since inclusion is inseparable from a well governed society, there is, in our view, no antithesis between maintaining the efficiency of administration and considering the claims of the SCs and STs to appointments to services and posts in connection with the affairs of the Union or of a State.121. The substantive right to equality is for all segments of society. Articles 15 (4) and 16 (4) represent the constitutional aspiration to ameliorate the conditions of the SCs and STs. While, we are conscious of the fact that the decision in Indra Sawhney did not accept K C Vasanth Kumaron certain aspects, the observations have been cited by us to explain the substantive relationship between equal opportunity and merit. It embodies the fundamental philosophy of the Constitution towards advancing substantive equality.122. An assumption implicit in the critique of reservations is that awarding opportunities in government services based on merit results in an increase in administrative efficiency. Firstly, it must be noted that administrative efficiency is an outcome of the actions taken by officials after they have been appointed or promoted and is not tied to the selection method itself. The argument that one selection method produces officials capable of taking better actions than a second method must be empirically proven based on an evaluation of the outcomes produced by officials selected through both methods.Secondly, arguments that attack reservations on the grounds of efficiency equate merit with candidates who perform better than other candidates on seemingly neutral criteria, e.g. standardised examinations. Thus, candidates who score beyond a particular cut-off point are considered meritoriousand others are non-meritorious. However, this is a distorted understanding of the function merit plays in society.124. Once we understand merit as instrumental in achieving goods that we as a society value, we see that the equation of merit with performance at a few narrowly defined criteria is incomplete. A meritocratic system is one that rewards actions that result in the outcomes that we as a society value.125. For example, performance in standardised examinations (distinguished from administrative efficiency) now becomes one among many of the actions that the process of appointments in government services seeks to achieve. Based on the text of Articles 335, Articles 16 (4), and 46, it is evident that the uplifting of the SCs and STs through employment in government services, and having an inclusive government are other outcomes that the process of appointments in government services seeks to achieve.126. The Proviso to Article 335 of the Constitution seeks to mitigate this risk by allowing for provisions to be made for relaxing the marks in qualifying exams in the case of candidates from the SCs and the STs. If the governments sole consideration in appointments was to appoint individuals who were considered talented or successful in standardised examinations, by virtue of the inequality in access to resources and previous educational training (existing inequalities in society), the stated constitutional goal of uplifting these sections of society and having a diverse administration would be undermined. Thus, a meritorious candidate is not merely one who is talented or successful but also one whose appointment fulfils the constitutional goals of uplifting members of the SCs and STs and ensuring a diverse and representative administration.128. The first two criteria are evidently not the products of a candidates own efforts but rather the structural conditions into which they are born. By the addition of upliftment of SCs and STs in the moral compass of merit in government appointments and promotions, the Constitution mitigates the risk that the lack of the first two criteria will perpetuate the structural inequalities existing in society130. Moreover, even in a formal legal sense, promotions, including those in respect of roster points, are made on the basis of seniority-cum-merit and a candidate to be promoted has to meet this criteria [See in this context Rule 19(3) A and D of the Karnataka Civil Services General Recruitment Rules 1977 which states that subject to other provisions all appointments by promotion shall be on an officiating basis for a period of one year and at the end of the period of officiation, if appointing authority considers the person not suitable for promotion, she/he may be reverted back to the post held prior to the promotion]. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected133. Ms Jaisings argument is based on the decision in Chinnaiah that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a spilt in the homogenous groups of the SCs and STs. This argument according to Dr Dhavan, was rejected in Jarnail by the Constitution Bench137. We are thus unable to subscribe to the submission that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in Indra Sawhney, noticing that eight of the nine learned Judges applied the creamy layer principle as a facet of the larger equality principle.Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create subcategories among the Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality.138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant ofconsequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness.139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs.141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accordedOver representation in KPTCL and PWD143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well | 0 | 39,819 | 7,085 | ### Instruction:
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of Indra Sawhney holds that the creamy layer principle is a principle of equality. 138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant of consequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness. The Constitution Bench declined to accept the submission on the ground that it related to the validity of Article 16 (4A) and held thus: 34…We may hasten to add that Shri Dwivedis argument cannot be confused with the concept of creamy layer which, as has been pointed out by us hereinabove, applies to persons within the Scheduled Castes or the Scheduled Tribes who no longer require reservation, as opposed to posts beyond the entry stage, which may be occupied by members of the Scheduled Castes or the Scheduled Tribes. (Emphasis supplied) 139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs. I. Retrospectivity 140. Sections 3 and 4 of the Reservation Act 2018 came into force on 17 June 1995. The other provisions came into force at once as provided in Section 1(2). Section 4 stipulates that the consequential seniority already granted to government servants belonging to the SCs and STs in accordance with the reservation order with effect from 27 April 1978 shall be valid and shall be protected. In this context, we must note from the earlier decisions of this Court that: (i) The decision in Virpal Singh held that the catch-up rule would be applied only from 10 February 1995 which was the date of the judgment in Sabharwal; (ii) The decision in Ajit Singh II specifically protected the promotions which were granted before 1 March 1996 without following the catch-up rule; and (iii) In Badappanavar, promotions of reserved candidates based on consequential seniority which took place before 1 March 1996 were specifically protected. 141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional. 142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accorded J. Over representation in KPTCL and PWD 143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well K. Conclusion
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not suitable for promotion, she/he may be reverted back to the post held prior to the promotion]. A candidate on promotion has to serve a statutory period of officiation before being confirmed. This rule applies across the board including to roster point promotees. This ensures that the efficiency of administration is, in any event, not adversely affected133. Ms Jaisings argument is based on the decision in Chinnaiah that the SCs and STs cannot be split or bifurcated and the adoption of the creamy layer principle would amount to a spilt in the homogenous groups of the SCs and STs. This argument according to Dr Dhavan, was rejected in Jarnail by the Constitution Bench137. We are thus unable to subscribe to the submission that Jarnail is not per curium on the issue of creamy layer. For one thing, Jarnail specifically examined the decision in Indra Sawhney, noticing that eight of the nine learned Judges applied the creamy layer principle as a facet of the larger equality principle.Jarnail discussed the decision in Chinnaiah and held that it dealt with the lack of legislative competence on the part of the State legislatures to create subcategories among the Presidential lists under Articles 341 and 342. The decision in Jarnail therefore held that Chinnaiah did not deal with any of the aspects on which the constitutional amendments were upheld in Nagaraj and hence it was not necessary for Nagaraj to refer to Chinnaiah at all. In this view of the matter, we are clearly of the view that Jarnail, on a construction of Indra Sawhney holds that the creamy layer principle is a principle of equality.138. Though, we have not accepted the above submission which was urged by Ms Jaising on behalf of the intervenors, we will have to decide as to whether the Reservation Act 2018 is unconstitutional. The challenge in the present case is to the validity of the Reservation Act 2018 which provides for consequential seniority. In other words, the nature or extent of reservation granted to the SCs and STs at the entry level in appointment is not under challenge. The Reservation Act 2018 adopts the principle that consequential seniority is not an additional benefit but a consequence of the promotion which is granted to the SCs and STs. In protecting consequential seniority as an incident of promotion, the Reservation Act 2018 constitutes an exercise of the enabling power conferred by Article 16 (4A). The concept of creamy layer has no relevance to the grant ofconsequential seniority. There is merit in the submission of the State of Karnataka that progression in a cadre based on promotion cannot be treated as the acquisition of creamy layer status. The decision in Jarnail rejected the submission that a member of an SC or ST who reaches a higher post no longer has a taint of untouchability or backwardness.139. In sustaining the validity of Articles 16 (4A) and 16 (4B) against a challenge of violating the basic structure, Nagaraj applied the test of width and the test of identity. The Constitution Bench ruled that the catch-up rule and consequential seniority are not constitutional requirements. They were held not to be implicit in clauses (1) to (4) of Article 16. Nagaraj held that they are not constitutional limitations or principles but are concepts derived from service jurisprudence. Hence, neither the obliteration of those concepts nor their insertion would violate the equality code contained in Articles 14, 15 and 16. The principle postulated in Nagaraj is that consequential seniority is a concept purely based in service jurisprudence. The incorporation of consequential seniority would hence not violate the constitutional mandate of equality. This being the true constitutional position, the protection of consequential seniority as an incident of promotion does not require the application of the creamy layer test. Articles 16 (4A) and 16 (4B) were held to not obliterate any of the constitutional limitations and to fulfil the width test. In the above view of the matter, it is evident that the concept of creamy layer has no application in assessing the validity of the Reservation Act 2018 which is designed to protect consequential seniority upon promotion of persons belonging to the SCs and STs.141. Since promotions granted prior to 1 March 1996 were protected, it was logical for the legislature to protect consequential seniority. The object of the Reservation Act 2018 is to accord consequential seniority to promotees against roster points. In this view of the matter, we find no reason to hold that the provisions in regard to retrospectivity in the Ratna Prabha Committee report are either arbitrary or unconstitutional142. The benefit of consequential seniority has been extended from the date of the Reservation Order 1978 under which promotions based on reservation were accordedOver representation in KPTCL and PWD143. The Ratna Prabha Committee collected data from thirty one departments of the State Government of Karnataka. It has been pointed out on behalf of the State that corporations such as KPTCL and other public sector undertakings fall within the administrative control of one of the departments of the State government. The position in thirty one departments was taken as representative of the position in public employment under the State. The over representation in KPTCL and PWD has been projected by the petitioners with reference to the total number of posts which have been filled. On the other hand, the quota is fixed and the roster applies as regards the total sanctioned posts as held in Sabharwal and Nagaraj. On the contrary, the data submitted by the State of Karnataka indicates that if consequential seniority is not allowed, there would be under representation of the reserved categories. Finally, it may also be noted that under the Government Order dated 13 April 1999, reservation in promotion in favour of SCs and STs has been provided until the representation for these categories reaches 15 per cent and 3 per cent, respectively. The State has informed the Court that the above Government Order is applicable to KPTCL and PWD, as well
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Ramji Dayawala & Sons (P) Ltd Vs. Invest Import | Procedure, 1908, if any party to a submission made in pursuance of an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies, or any person claiming through or under him, commences any legal proceeding in any court against any other party to the submission or any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceeding may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the court to stay the proceedings; and the court unless satisfied that the agreement or arbitration has become inoperative or cannot proceed, or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings"39. India and Yugoslavia have ratified the protocol. The question, however, is whether Section 3 is attracted in this case. The important expression is Section 3 to be noted is : "If any party to a submission made in pursuance of an arbitration agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies". This expression postulates an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies and a submission made in pursuance of such agreement. Now, both India and Yugoslavia have ratified the protocol modified by the reservation subject to which it is signed by India. It may be assumed that arbitration agreement between the parties to this appeal is governed by the 1937 Act. Section 3 is, however, not attracted merely where an agreement as set forth in the First Schedule is subsisting between the parties but the next step ought to have been taken before proceedings can be stayed in exercise of the power conferred by Section 3, viz., submission made in pursuance of such an agreement. A reference to Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961, (1961 Act for short), prior to its amendment by the Amending Act of 1973 and a decision of this Court interpreting the expression : "If any party to a submission made in pursuance of an agreement to which" would clearly establish that mere existence of an agreement as envisaged by the First Schedule would not attract Section 3 of the 1937 Act but it would only be attracted where there is a submission pursuant to that agreement. Section 3 of the 1961 Act prior to its amendment in 1973 read as under:"Stay of proceedings in respect of matter to be referred to arbitration : Notwithstanding anything contained in the Arbitration Act X of 1940 or in the Code of Civil Procedure, 1908, if any party to a submission made in pursuance of an agreement to which the Convention set forth in the Schedule applies, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission of any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance or before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings and the Court, unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regards to the matter agreed to be referred, shall make an order staying the proceedings"40. This section came in for interpretation in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ). Interpreting this section this Court held as under:"But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the suit"41. Section 3 of 1937 Act is in pari materia with Section 3 of 1961 Act. It, therefore, becomes crystal clear that Section 3 of the 1937 Act would only be attracted if there is a submission pursuant to an agreement to that effect. In fact, the decision in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ), made it necessary for the Parliament to amend Section 3 of the 1961 Act. In this case we are concerned with Section 3 of the 1937 Act which is not amended. It must, therefore, receive the same interpretation which an identical provision received at the hands of this Court. Viewed from that angle, in this case while there is an agreement as contemplated by First Schedule to 1937 Act, there is no submission made in pursuance of such agreement and, therefore, the application of the respondent could not have been entertained under Section 3 of the 1937 Act. As far as the 1961 Act is concerned, Mr. Majumdar conceded that Yugoslavia has not ratified the protocol pursuant to which 1961 Act was enacted and, therefore, the respondent cannot maintain its application under Section 3 of the 1961 Act42. The last submission is that this being an arbitration agreement to refer a dispute to a foreign arbitral tribunal, Section 34 of the Arbitration Act would not be applicable and hence the application of the respondent for stay of the suit is not maintainable. It is not necessary to examine this contention on its merits because we have assumed for the purpose of this appeal that Section 34 of the 1940 Act would be attracted even where the agreement is to refer a dispute to a foreign arbitral tribunal43. | 1[ds]Undoubtedly, subcontract marked Ex. A has been signed both by the Managing Director of theand by one Mr. Petrovije on behalf of theThird paragraph of Article 12 of subcontract Ex. A recites an arbitration agreement. The provision is for a reference of disputes arising out of the subcontract to foreign arbitral tribunal, namely, the International Chamber of Commerce in Paris. Such a clause has always been interpreted to spell out an arbitrationrecall, subcontract Ex. A was signed by the parties in Belgrade on July 10, 1961. Managing Director of the appellant was in Belgrade on that day. On that very day Managing Director sent a letter from Belgrade itself addressed to the respondent at Belgrade, relevant portion of which may be extracted10, 1961I have signed the contract of Barauni Thermal Power Station work with you.I have objected to the clause of arbitration put in there in agreement which was deleted from our revised draft of agreement sent to you in advance. Arbitration clause will be acceptable to us if only arbitration is to be done in India, according to our rules and regulations and procedure of ourletter was handed in to the respondent on the same day on which Ex. A was signed and accepted by the parties and it would imply that it must be soon after the signing ceremony was over. Further, the Managing Director of the appellant immediately on landing in Bombay on July 13, 1961, sent a cable to the respondent which reads assafely Bombay (stop) Reference to our letter of July 10, 1961 regarding Arbitration clause to be deleted from the contractthings emerge from a conjoint reading of the letter and the cable that before subcontract Ex. A was signed by the parties of Belgrade, a draft of the intended subcontract was sent by the respondent to the appellant for its approval and the Managing Director of the appellant had raised a limited objection to the arbitrationbehalf of the appellant it was suggested that there would be no objection to the arbitration clause if arbitration was to be done in India. But as the original draft submitted on behalf of the respondent suggested arbitration by a foreign arbitral tribunal stationed in Paris, the same was objected to on behalf of the appellant and its amendment was sought. Undoubtedly, Managing Director of appellant signed Ex. A which incorporated the arbitration agreement was extracted hereinbefore. But the letter referred to herein was handed in presumably soon after the signing ceremony of subcontract Ex. A was over and was followed by the cable which not only referred to letter dated July 10, 1961, but also reiterated and repeated the objection to the arbitrationappellant Bench of the High Court held that the letter and the cable were not received by the respondent. This conclusion is not only contrary to evidence on record but is reached in utter disregard of the admission of the Manager of respondent. Ilija Kostantinovic, Manager ofstationed at Calcutta filed an affidavit in rejoinder. The admissions are spelt out in paragraphs 5 and 6 of the affidavit which are extracted hereinabove. In para 6 it is in terms admitted that the appellant purported to send a letter to the respondent seeking to modify and/or delete of the arbitration clause contained in the contract dated July 10, 1961, and also purported to send a telegram to the respondent. He further proceeded to state that the respondent never agreed to the modification and/or deletion of the arbitration clause. This unambiguous admission unmistakably shows that the letter and the cable were received by the respondent. Of course, again at a later stage when Panich Stojan, Project Manager of the respondent entered theto give evidence in support of the application for stay he was asked at question No. 13 whether he had any knowledge about the letter sent by the appellant on July 10, 1961, relating to the arbitration clause contained in the agreement. The answer was that the deponent had not received any letter his department. To question No. 16 about the cable, the answer was that the respondent had not received any cable also. Inwhen he was confronted with the averments in paragraph 6 of the affidavit of Ilija Kostantinovic, a nebulous answer was given that Mr. Kostantinovic must have replied to the letter and the telegram. And he admitted that Mr. Kostantinovic was the Manager of the branch office of the respondentcompany at Calcutta. Now, one employee, viz., the Manager of thestationed at Calcutta in terms admitted the receipt of the letter and the cable while the witness who claimed to be present at the signing ceremony of the subcontract Ex. A was emphatic that the cable and the letter were not received and gave an explanation with regard to the averments of the affidavit which only show that the truth was otherwise. In the face of uncontroverted and unambiguous admission in the affidavit of the Manager of theone can without fear of contradiction assert that the letter and the cable were received by the respondent. The letter and the cable would show that the arbitration agreement to refer disputes to a foreign arbitral tribunal in the draft was not acceptable to the appellant though the other terms were in acceptable. The appellant repudiated the arbitration agreement soon after the agreement was signed when the Managing Director of the appellant was in Belgrade and took the follow up action by sending a cable reiterating and repeating the objection immediately after his return tois that accepted the change in arbitration clause proposed by the appellant sub silentio coupled with the subsequent conduct. It is a fact that the respondent did not write back saying that if the arbitration agreement was not acceptable to the appellant the subcontract would not be acceptable as a whole to the respondent. On the contrary, after a specific objection only with regard to arbitration agreement in the subcontract Ex. A by the appellant, the respondent allowed the appellant to proceed further with the implementation and execution of the subcontract, without controverting what the appellant had stated in the letter and the cable. This would unmistakably show that the respondent accepted the alteration as suggested by the appellant in that the arbitration agreement was deemed to have been deleted from the subcontract Ex. A. Add to this the circumstance that a petty labour contractor could not have been expected to or was not likely to agree to arbitration by a foreign arbitral tribunal stationed in Paris because it would be beyond its reach to seek relief by arbitration in a foreignin this case Bhikhubhai Gourishankar Joshi who filed an affidavit on behalf of the appellant has referred to the averments in the letter and the cable. He is a principal officer and constituted attorney of theOnce the receipt of the letter and the cable are admitted or proved coupled with the fact that even after the dispute arose and before the suit was filed, in the correspondence that ensued between the parties, the respondent did not make any overt or convert reference to the arbitration agreement and utter failure of the respondent to reply to the letter and the cable controverting the averments made therein would unmistakably establish the truth of the averments made in their letter. What is the effect of averments is a different question altogether but the averments contained in the letter and the cable are satisfactorilythe facts of a given case acceptance of a suggestion may be sub silentio reinforced by the subsequent conduct. True it is that the general rule is that an offer is not accepted by mere silence on the part of the offeree. There may, however, be further facts which taken together with the offerees silence constitute an acceptance. One such case is where a part of the offer was disputed at the negotiation stage and the original offeree communicated that fact to the offerer showing that he understood the offer in a particular sense. This communication will probably amount to a counter offer in which case it may be that mere silence of the original offerer will constitute his acceptance (see HALSBURYS LAWS OF ENGLAND, 4th Edn., Vol. 9, para 251). Where there is a mistake as to terms of a document as in this case, amendment to the draft was suggested and a counter offer was made, the signatory to the original contract is not estopped by his signature from denying that he intended to make an offer in the terms set out in the document, to wit, the letter and the cable (ibid., para 295). It can, therefore, be stated that where the contract is in a number of parts it is essential to the validity of the contract that the contracting party should either have assented to or taken to have assented to the same thing in the same sense or as it is sometimes put, there should be consesus ad idem. And from this it follows that a party may be taken to have assented if he has so conducted himself as to be estopped from denying that he has so assented (ibid., para 288). Even apart from this, it would still be open to the party contending novatio to prove that he had not accepted a part of the original agreement though it has signed the agreement containing thatwould, therefore, be inappropriate to say that because the appellant has signed the subcontract, every part of it is accepted by him even though there is convicting evidence pointing to the contrary. It was, however, said that a subsequent negotiation or a repudiation of part of the contract cannot in any manner affect the concludedthe conclusion is inescapable that there was no concluded arbitration agreement between the parties. The High Court rejected the contention of the appellant holding that when the Managing Director of the appellant signed the contract at Belgrade on July 10, 1961, the subcontract contained the arbitration agreement and his signature was only less than half an inch away from the arbitration clause and that he has not entered theand offered himself forand that the respondents contention that the letter and the cable were not received appeared to be acceptable. The High Court totally overlooked and ignored the admission of receipt of letter and cable in paragraph 6 of the affidavit of Ilija Kostantinovic. The High Court attached importance to the denial of the receipt of the letter and the cable by Mr. Panich Stojan in his oral evidence and did not attach importance to his subsequent admission that Mr. Kostantinovic must have replied to the letter and the cable. Admission, unless explained, furnishes the best evidence. With respect, the High Court overlooked the material evidence, drew impermissible inference and came to the conclusion which on evidence we find utterly unsustainable. A finding of fact recorded by the High Court overlooking the incontrovertile evidence which points to the contrary and, therefore, utterly unsustainable cannot come in the way of this Court reaching a correct conclusion on facts and the examination of the evidence by this Court cannot be impeded by a mere submission of this Court does not interfere with finding ofthe present case respondent who moved an application for stay of suit instituted by the appellant founded its request for stay on shifting sands in that at one stage it was stated that the application was under Section 34 of the Arbitration Act, at other stage it was stated that it was under Section 151,CPC, and before us it was stated that it is under Section 3 ofthe Arbitration (Protocol and Convention) Act, 1937, or underthe Foreign Awards (Recognition and Enforcement) Act, 1961. In the notice of motion taken out for stay of the suit by the respondent it was stated that the application purports to be under Section 151,CPC. There is no reference to Section 34 ofthe Arbitration Act, 1940, in the body of the petition or in the affidavit annexed to the petition. On the contrary, it was stated in para 16 of the petition that if Arbitration Act, 1940, does not apply to the arbitration agreement relied upon by the respondent, the court may in exercise of its inherent jurisdiction restrain the appellant from proceeding with the suit. The learned Single Judge appears to have treated the application to be under Section 34 of the Arbitration Act, because in the last paragraph of his order he has stated that the Arbitration Act applies even if the arbitration agreement provides for reference to a foreign arbitral tribunal. So saying, stay was granted which would imply that the learned Judge treated the application to be one under Section 34 of the Arbitration Act. While dealing with the contention of the appellant that in view of the fact that arbitration agreement refers to arbitration by a foreign arbitral tribunal, Arbitration Act, 1940, is not attracted, the Division Bench has assumed as was done in Michael Golodetz v. Serajuddin & Co. (1964 1 SCR 19 : AIR 1963 SC 1044 ), thatthe Arbitration Act, 1940, invests a court in India with authority to stay a legal proceeding commenced by a party to an agreement against any other party thereto in respect of any matter agreed to be referred, even when the agreement is to submit it to a foreign arbitral tribunal. It further, however, held that even if Section 34 is not attracted, the court can in exercise of the inherent jurisdiction for doing justice between the parties, stay further proceeding of the suit which would imply that the court exercised its jurisdiction under Section 151,CPC. Both the courts practically overlooked the basic difference in the approach which the court will have to adopt if the application is to be treated under Section 34 ofthe Arbitration Act, 1940, or one under Section 151,CPC. In any event, as the motion is at the discretion of the court and as both the parties have led evidence, the burden of proof would assume secondaryis well settled that where the trial Court has a discretion in the matter; the appellate Court would not ordinarily substitute its discretion in place of the discretion exercised by the trial Court. But it is equally well settled that where the trial Court ignoring the relevant evidence,the approach to be adopted in the matter and overlooking various relevant considerations, has exercised its discretion one way, the appellate Court keeping in view the fundamental principle can and ought to interfere because when it is said that a matter is within the discretion of the court it is to be exercised according to well established judicial principles, according to reason and fair play, and not according to whim andor refusing to grant stay is still a matter within the discretion of the court. How discretion would be exercised in a given case would depend upon various circumstances. But to grant stay of the suit is still a matter within the discretion of theto the various heads of claim by the appellant and the correspondence between the parties prior to the suit it is safe to conclude that the evidence of the respondent would also be in India. Of course, as a remote possibility some highly placed officer may have to be examined by the respondent who may be incourt is required to consider the situation as on the date of institution of the suit and unquestionably on the date of institution of the suit office of the respondent at 36, Ganesh Chandra Avenue, Calcutta, was functioning and withindays of the institution of the suit respondent appeared in the suit through IlijaKostantinovic, Manager of therespondent stationed at Calcutta. Neither in the main petition for stay nor in the affidavit in rejoinder it was anywhere stated that the evidence of the respondent was not inif subsequent events as have a bearing on the contention canvassed before the court have to be taken into consideration, there is no material on record to show that the respondent has closed its office at Calcutta and that the documents and books of accounts which may have to be tendered in evidence have been taken to Yugoslavia. Save this, Mr. Majumdar could not controvert the fact that the entire evidence both of the appellant and the respondent which may be relevant for resolution of the dispute involved in the suit is in this country,t. The claim in the suit is Rs. 4, 25, 343. Now, just contemplate taking witnesses and books of accounts to Paris for leading evidence before the International Chamber of Commerce. The cost would certainly be disproportionately high. One nee not go into the mathematical calculations for this obvious andh in the case of Michael Golodetz (1964 1 SCR 19 : AIR 1963 SC 1044 ) and in V/O Tractoroexport, Moscow v. M/s. Tarapore & Co. (1970 3 SCR 53 : 1969 3 SCC 562 ), this Court held that restriction on availability of foreign exchange is a relevant consideration which should enter into judicial verdict for exercising the discretion one way or the other. The High Court in this connection observed that if the Managing Director of thecould obtain foreign exchange for going to Belgrade to sign the contract, why should to be assumed that he would get foreign exchange this time too to plead his causea cause which owes its existence to the grant of foreign exchange if 1961 ? This casual approach isForeign exchange for a visit for few days cannot be equated with heavy requirement of foreign exchange for engaging counsel, taking witnesses and transporting documents from India to Paris so as to substantiate a claim of Rs. 4, 25, 343. And the judicial approach is not whether the appellant would get necessary foreign exchange but the approach is should this valuable national asset of foreign exchange be frittered away for resolving a petty matter which can be conveniently resolved even in thisthis approach dictated by some principle or was the respondent aware of the fact that looking to the quantum of claim the appellant would not undertake the hazardous and expensive adventure of going to foreign arbitration tribunal stationed at Paris and that thereby the respondent would be able to thwart or stifle the claim of the appellant ? If the relief to be granted is discretionary, the approach of each party persuading the court to exercise the discretion one way or the other would be a vital and relevant consideration. The respondent has anyhow either to appear before the court in India or a foreign arbitral tribunal in Paris. The respondent is from Yugoslavia. Apart from this, the respondent has an office at Calcutta and the responsible officer like a Manager was stationed at Calcutta. The correspondence between the parties prior to the institution of the suit shows that the relevant documents were in India on the basis of which certain replies were given by the respondent to the claims advanced on behalf of the appellant. But once the suit was filed, the respondent insists that arbitration agreement should be given full effect. Having regard to all the circumstances of the case it appears crystal clear that the respondent is motivated to seek stay neither to vindicate any principle nor to hold the appellant to the bargain but to force the appellant to go to Paris incurring disproportionately heavy cost or to give up the claim. In Michael Golodetz (1964 1 SCR 19 : AIR 1963 SC 1044 ) the fact that arbitration in New York would proceed ex parte was viewed with disfavour and stay was refused. Similarly, in The Fehmarn (1957 2 All 2 All ER 707), the principal object of the defendant was not to achieve a trial in Russia but merely make it more difficult to the plaintiff to assert their claim, was emphasised while refusing stay. In such situation if there are other weighty circumstances which indicate that the court should not lend its assistance to the respondent by staying the suit, this aspect of the approach of the respondent would reinforce thethe court where the cause of action has arisen would try to resolve the dispute brought before it from the cause of action arising out of its jurisdiction. If parties have agreed to another mode of resolution of dispute, the court may hold the parties to their bargain but when the court is deprived of the jurisdiction by an agreement between the parties and if the court is called upon to enforce it, the matter will still be within the discretion of the court. As was stated in Bristol Corporation case (1913 AC 241, 257), when the court refused to stay an action it cannot be said that the court is not carrying out the bargain between the parties because that does not fairly describe the position. The court is carrying out the bargain between the parties because the bargain to substitute for the courts of the land a domestic tribunal was a bargain into which was written, by reason of the existing legislation, the condition that it should only be enforced if the court thought it a proper case for its being so enforced. And that is where the discretion of the court creepssum up, the entire evidence both of the appellant and the respondent is in this country; the contract as a whole was executed and carried out in this country; the claim as a whole arose in this country; the appellant is a company incorporated in this country and the respondent is having its office in this country; and that the respondent is not motivated by any principle to have the decision of the foreign arbitral tribunal at Paris but the principal object of the respondent is merely to make it more difficult, if not impossible, for the appellant to assert the claim. Add to this two other vital considerations, viz., that the cost of arbitration at Paris will be so disproportionately high to the claim involved in adjudication that one would never think of incurring such a huge cost to realise such a small sum claimed, and the restriction on the availability of foreign exchange, another vital relevant consideration. The sum total of all these well established circumstances clearly indicate that this was a suit in which when discretion is exercised on well settled judicial considerations no court would grant stay and the stay has to bedid not undertake construction of thermal power station actuated by any altruistic motive but guided by sound business considerations. One who comes here to earn by going into business need not be put on a pedestal. The High Court overlooked the global competition for obtaining international contracts and it is not a philanthropic motive. The extracted passage clearly indicates an approach not dictated by sound judicial principles but considerations wholly extraneous to the issue under discussion. It is in these circumstances that this Court is constrained to interfere with the discretionary relief granted in thisand Yugoslavia have ratified the protocol. The question, however, is whether Section 3 is attracted in this case. The important expression is Section 3 to be noted is : "If any party to a submission made in pursuance of an arbitration agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies". This expression postulates an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies and a submission made in pursuance of such agreement. Now, both India and Yugoslavia have ratified the protocol modified by the reservation subject to which it is signed by India. It may be assumed that arbitration agreement between the parties to this appeal is governed by the 1937 Act. Section 3 is, however, not attracted merely where an agreement as set forth in the First Schedule is subsisting between the parties but the next step ought to have been taken before proceedings can be stayed in exercise of the power conferred by Section 3, viz., submission made in pursuance of such an agreement. A reference to Section 3 ofthe Foreign Awards (Recognition and Enforcement) Act, 1961, (1961 Act for short), prior to its amendment by the Amending Act of 1973 and a decision of this Court interpreting the expression : "If any party to a submission made in pursuance of an agreement to which" would clearly establish that mere existence of an agreement as envisaged by the First Schedule would not attract Section 3 of the 1937 Act but it would only be attracted where there is a submission pursuant to that agreement. Section 3 of the 1961 Act prior to its amendment in 1973 read asof proceedings in respect of matter to be referred to arbitration : Notwithstanding anything contained in the Arbitration Act X of 1940 or in theCode of CivilProcedure, 1908, if any party to a submission made in pursuance of an agreement to which the Convention set forth in the Schedule applies, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission of any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance or before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings and the Court, unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regards to the matter agreed to be referred, shall make an order staying thesection came in for interpretation in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ). Interpreting this section this Court held asin the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the3 of 1937 Act is in pari materia with Section 3 of 1961 Act. It, therefore, becomes crystal clear that Section 3 of the 1937 Act would only be attracted if there is a submission pursuant to an agreement to that effect. In fact, the decision in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ), made it necessary for the Parliament to amend Section 3 of the 1961 Act. In this case we are concerned with Section 3 of the 1937 Act which is not amended. It must, therefore, receive the same interpretation which an identical provision received at the hands of this Court. Viewed from that angle, in this case while there is an agreement as contemplated by First Schedule to 1937 Act, there is no submission made in pursuance of such agreement and, therefore, the application of the respondent could not have been entertained under Section 3 of the 1937 Act. As far as the 1961 Act is concerned, Mr. Majumdar conceded that Yugoslavia has not ratified the protocol pursuant to which 1961 Act was enacted and, therefore, the respondent cannot maintain its application under Section 3 of the 1961 Act | 1 | 12,236 | 4,906 | ### 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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Procedure, 1908, if any party to a submission made in pursuance of an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies, or any person claiming through or under him, commences any legal proceeding in any court against any other party to the submission or any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceeding may, at any time after appearance and before filing a written statement or taking any other steps in the proceedings, apply to the court to stay the proceedings; and the court unless satisfied that the agreement or arbitration has become inoperative or cannot proceed, or that there is not in fact any dispute between the parties with regard to the matter agreed to be referred, shall make an order staying the proceedings"39. India and Yugoslavia have ratified the protocol. The question, however, is whether Section 3 is attracted in this case. The important expression is Section 3 to be noted is : "If any party to a submission made in pursuance of an arbitration agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies". This expression postulates an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies and a submission made in pursuance of such agreement. Now, both India and Yugoslavia have ratified the protocol modified by the reservation subject to which it is signed by India. It may be assumed that arbitration agreement between the parties to this appeal is governed by the 1937 Act. Section 3 is, however, not attracted merely where an agreement as set forth in the First Schedule is subsisting between the parties but the next step ought to have been taken before proceedings can be stayed in exercise of the power conferred by Section 3, viz., submission made in pursuance of such an agreement. A reference to Section 3 of the Foreign Awards (Recognition and Enforcement) Act, 1961, (1961 Act for short), prior to its amendment by the Amending Act of 1973 and a decision of this Court interpreting the expression : "If any party to a submission made in pursuance of an agreement to which" would clearly establish that mere existence of an agreement as envisaged by the First Schedule would not attract Section 3 of the 1937 Act but it would only be attracted where there is a submission pursuant to that agreement. Section 3 of the 1961 Act prior to its amendment in 1973 read as under:"Stay of proceedings in respect of matter to be referred to arbitration : Notwithstanding anything contained in the Arbitration Act X of 1940 or in the Code of Civil Procedure, 1908, if any party to a submission made in pursuance of an agreement to which the Convention set forth in the Schedule applies, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission of any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance or before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings and the Court, unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regards to the matter agreed to be referred, shall make an order staying the proceedings"40. This section came in for interpretation in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ). Interpreting this section this Court held as under:"But in the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the suit"41. Section 3 of 1937 Act is in pari materia with Section 3 of 1961 Act. It, therefore, becomes crystal clear that Section 3 of the 1937 Act would only be attracted if there is a submission pursuant to an agreement to that effect. In fact, the decision in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ), made it necessary for the Parliament to amend Section 3 of the 1961 Act. In this case we are concerned with Section 3 of the 1937 Act which is not amended. It must, therefore, receive the same interpretation which an identical provision received at the hands of this Court. Viewed from that angle, in this case while there is an agreement as contemplated by First Schedule to 1937 Act, there is no submission made in pursuance of such agreement and, therefore, the application of the respondent could not have been entertained under Section 3 of the 1937 Act. As far as the 1961 Act is concerned, Mr. Majumdar conceded that Yugoslavia has not ratified the protocol pursuant to which 1961 Act was enacted and, therefore, the respondent cannot maintain its application under Section 3 of the 1961 Act42. The last submission is that this being an arbitration agreement to refer a dispute to a foreign arbitral tribunal, Section 34 of the Arbitration Act would not be applicable and hence the application of the respondent for stay of the suit is not maintainable. It is not necessary to examine this contention on its merits because we have assumed for the purpose of this appeal that Section 34 of the 1940 Act would be attracted even where the agreement is to refer a dispute to a foreign arbitral tribunal43.
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the appellant is a company incorporated in this country and the respondent is having its office in this country; and that the respondent is not motivated by any principle to have the decision of the foreign arbitral tribunal at Paris but the principal object of the respondent is merely to make it more difficult, if not impossible, for the appellant to assert the claim. Add to this two other vital considerations, viz., that the cost of arbitration at Paris will be so disproportionately high to the claim involved in adjudication that one would never think of incurring such a huge cost to realise such a small sum claimed, and the restriction on the availability of foreign exchange, another vital relevant consideration. The sum total of all these well established circumstances clearly indicate that this was a suit in which when discretion is exercised on well settled judicial considerations no court would grant stay and the stay has to bedid not undertake construction of thermal power station actuated by any altruistic motive but guided by sound business considerations. One who comes here to earn by going into business need not be put on a pedestal. The High Court overlooked the global competition for obtaining international contracts and it is not a philanthropic motive. The extracted passage clearly indicates an approach not dictated by sound judicial principles but considerations wholly extraneous to the issue under discussion. It is in these circumstances that this Court is constrained to interfere with the discretionary relief granted in thisand Yugoslavia have ratified the protocol. The question, however, is whether Section 3 is attracted in this case. The important expression is Section 3 to be noted is : "If any party to a submission made in pursuance of an arbitration agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies". This expression postulates an agreement to which the protocol set forth in the First Schedule as modified by the reservation subject to which it was signed by India applies and a submission made in pursuance of such agreement. Now, both India and Yugoslavia have ratified the protocol modified by the reservation subject to which it is signed by India. It may be assumed that arbitration agreement between the parties to this appeal is governed by the 1937 Act. Section 3 is, however, not attracted merely where an agreement as set forth in the First Schedule is subsisting between the parties but the next step ought to have been taken before proceedings can be stayed in exercise of the power conferred by Section 3, viz., submission made in pursuance of such an agreement. A reference to Section 3 ofthe Foreign Awards (Recognition and Enforcement) Act, 1961, (1961 Act for short), prior to its amendment by the Amending Act of 1973 and a decision of this Court interpreting the expression : "If any party to a submission made in pursuance of an agreement to which" would clearly establish that mere existence of an agreement as envisaged by the First Schedule would not attract Section 3 of the 1937 Act but it would only be attracted where there is a submission pursuant to that agreement. Section 3 of the 1961 Act prior to its amendment in 1973 read asof proceedings in respect of matter to be referred to arbitration : Notwithstanding anything contained in the Arbitration Act X of 1940 or in theCode of CivilProcedure, 1908, if any party to a submission made in pursuance of an agreement to which the Convention set forth in the Schedule applies, or any person claiming through or under him, commences any legal proceedings in any Court against any other party to the submission of any person claiming through or under him in respect of any matter agreed to be referred, any party to such legal proceedings may at any time after appearance or before filing a written statement or taking any other steps in the proceedings, apply to the Court to stay the proceedings and the Court, unless satisfied that the agreement is null and void, inoperative or incapable of being performed or that there is not in fact any dispute between the parties with regards to the matter agreed to be referred, shall make an order staying thesection came in for interpretation in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ). Interpreting this section this Court held asin the present case a suit is being tried in the courts of this country which, for the reasons already stated, cannot be stayed under Section 3 of the Act in the absence of an actual submission of the disputes to the arbitral tribunal at Moscow prior to the institution of the3 of 1937 Act is in pari materia with Section 3 of 1961 Act. It, therefore, becomes crystal clear that Section 3 of the 1937 Act would only be attracted if there is a submission pursuant to an agreement to that effect. In fact, the decision in V/O Tractoroexport, Moscow (1970 3 SCR 53 : 1969 3 SCC 562 ), made it necessary for the Parliament to amend Section 3 of the 1961 Act. In this case we are concerned with Section 3 of the 1937 Act which is not amended. It must, therefore, receive the same interpretation which an identical provision received at the hands of this Court. Viewed from that angle, in this case while there is an agreement as contemplated by First Schedule to 1937 Act, there is no submission made in pursuance of such agreement and, therefore, the application of the respondent could not have been entertained under Section 3 of the 1937 Act. As far as the 1961 Act is concerned, Mr. Majumdar conceded that Yugoslavia has not ratified the protocol pursuant to which 1961 Act was enacted and, therefore, the respondent cannot maintain its application under Section 3 of the 1961 Act
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MAHARASHTRA STATE ELECTRICITY DISTRIBUTION CO. LTD Vs. UNION OF INDIA AND OTHER | was also submitted that neither Section 44 nor any other provisions of the Act of 1948 enabled MSEB to impose any condition in the grant of consent, such as maintenance of contract demand at a particular level. The Board cannot unilaterally revise the charges in breach of such stipulations fixing the special tariff. A notification cannot be inconsistent with the terms of the agreement. If subsequent notification is quashed, it will not revive earlier notification. 23. An affidavit in compliance with the order dated 11.7.2019 has been filed on behalf of appellant-MSEDCL stating that supply of electricity, made available, was used by respondents to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. 24. The first question for consideration is whether the Commission could have quashed circulars issued by the appellant-MSEDCL before its formation. The Commission was constituted under the Act of 1998 on 5.8.1999. The circular issued before that could not have been quashed on the ground that MSEB had no power to issue them without the approval of the Commission. The decisions in that regard of Commission as well as of APTEL are liable to be set aside. In Binani Zinc Limited (supra), this Court held that before Commission came into existence, the power was to be exercised by the State Electricity Board. This Court held thus: 31. The State Electricity Boards are entitled to frame tariff in terms of the provisions contained in the 1948 Act. The tariff so framed is legislative in character. The Board, as a statutory authority, is bound to exercise its jurisdiction within the four corners of the statute. It must act in all fields, including the field of framing tariff by adopting the provisions laid down in the 1948 Act or the Rules and the Regulations framed thereunder. 32. It is one thing to say that while framing tariff the Board can only take into consideration the provisions laid down in the Schedule appended to the Act and/or the directions contained in the policy decisions issued by the State as also other statutory principles governing the same but then a tariff framed by it cannot be held to be ultra vires only because it did not take into consideration certain principles laid down in clauses (c) to (g) of sub-section (2) of Section 29 of the 1998 Act. *** 41. We have, however, no hesitation in finding that the State Electricity Board had the requisite jurisdiction to revise a tariff till such time as the Commission was constituted and the purposes of the 1998 Act could be achieved through it. Till the time the Regulatory Commission was not constituted by the State of Kerala, the power to determine tariff remained with the Board under the Electricity (Supply) Act, 1948 as it was not repealed by the Electricity Regulatory Commissions Act, 1998. Parliament could not have intended to bring about a situation where no authority would be empowered to determine the tariff between the date of coming into force of the ERC Act, 1998 and the constitution of the Commission. It is only after the Regulatory Commission is constituted that it will be the sole authority to determine the tariff. The decision of BSES Ltd. v. Tata Power Co. Ltd., (2004) 1 SCC 195, has been explained in Binani Zinc Limited (supra). 25. Concerning circular dated 2.9.1999, which remained in force till 28.4.2000, the Commission as well as the APTEL were required to consider impact of Commission earlier order passed on 10.1.2002 and also its observations made in the said order that CPP is a policy matter and that Commission was recently conferred with the power under Section 22(2) of the Act of 1998, it ought to have gone into the merits of the claim. It was also pointed out on behalf of appellantMSEDCL that it had submitted circulars for approval to Commission, which has not gone into the merits of the subject matter and later quashed circulars on the ground of competence. The MSEDCL filed circulars along with tariff proposal for approval as that was an essence of the tariff. 26. It has also been pointed out that in subsequent orders also, circulars as to CPP were relied upon by the Commission. It was incumbent upon the Commission to consider the effect of its orders and the prayer made by the appellant-MSEDCL to consider merits of various circulars while fixing the tariff. 27. As dispute pertains to the period from 2.9.1999 to 28.4.2000, and it is apparent from the additional affidavit filed by the appellantMSEDCL that the respondents used supply of electricity to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. In the peculiar facts of the case, as the Commission earlier opined in order dated 10.1.2002 that CPP is a policy matter and it did not decide as to the merits of subject matter as prayer for approval was made by the appellant-MSEDCL. The Commission observed that it would consider the matter in the future, but later on, without considering on merits the reasonableness of the demand, the Commission quashed the circulars. It is apparent that the liability was passed on to the buyers/consumers by the respondent nos.3 to 7 as electricity was used to manufacture their products sold in the market, working out the price based on expenditure. It would not be appropriate in the peculiar facts of the case to direct refund to be made by the appellant-MSEDCL of the amount recovered by it as it would tantamount to unjust enrichment. Thus, in the peculiar facts and circumstances of the case, it is not considered appropriate to remit the matter to decide the dispute on merits after two decades for the period from 2.9.1999 to 28.4.2000, during which circular dated 2.9.1999 was in force. | 1[ds]The circular issued before that could not have been quashed on the ground that MSEB had no power to issue them without the approval of the Commission. The decisions in that regard of Commission as well as of APTEL are liable to be set aside27. As dispute pertains to the period from 2.9.1999 to 28.4.2000, and it is apparent from the additional affidavit filed by the appellantMSEDCL that the respondents used supply of electricity to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. In the peculiar facts of the case, as the Commission earlier opined in order dated 10.1.2002 that CPP is a policy matter and it did not decide as to the merits of subject matter as prayer for approval was made by the appellant-MSEDCL. The Commission observed that it would consider the matter in the future, but later on, without considering on merits the reasonableness of the demand, the Commission quashed the circulars. It is apparent that the liability was passed on to the buyers/consumers by the respondent nos.3 to 7 as electricity was used to manufacture their products sold in the market, working out the price based on expenditure. It would not be appropriate in the peculiar facts of the case to direct refund to be made by the appellant-MSEDCL of the amount recovered by it as it would tantamount to unjust enrichment. Thus, in the peculiar facts and circumstances of the case, it is not considered appropriate to remit the matter to decide the dispute on merits after two decades for the period from 2.9.1999 to 28.4.2000, during which circular dated 2.9.1999 was in force. | 1 | 4,252 | 316 | ### 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:
was also submitted that neither Section 44 nor any other provisions of the Act of 1948 enabled MSEB to impose any condition in the grant of consent, such as maintenance of contract demand at a particular level. The Board cannot unilaterally revise the charges in breach of such stipulations fixing the special tariff. A notification cannot be inconsistent with the terms of the agreement. If subsequent notification is quashed, it will not revive earlier notification. 23. An affidavit in compliance with the order dated 11.7.2019 has been filed on behalf of appellant-MSEDCL stating that supply of electricity, made available, was used by respondents to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. 24. The first question for consideration is whether the Commission could have quashed circulars issued by the appellant-MSEDCL before its formation. The Commission was constituted under the Act of 1998 on 5.8.1999. The circular issued before that could not have been quashed on the ground that MSEB had no power to issue them without the approval of the Commission. The decisions in that regard of Commission as well as of APTEL are liable to be set aside. In Binani Zinc Limited (supra), this Court held that before Commission came into existence, the power was to be exercised by the State Electricity Board. This Court held thus: 31. The State Electricity Boards are entitled to frame tariff in terms of the provisions contained in the 1948 Act. The tariff so framed is legislative in character. The Board, as a statutory authority, is bound to exercise its jurisdiction within the four corners of the statute. It must act in all fields, including the field of framing tariff by adopting the provisions laid down in the 1948 Act or the Rules and the Regulations framed thereunder. 32. It is one thing to say that while framing tariff the Board can only take into consideration the provisions laid down in the Schedule appended to the Act and/or the directions contained in the policy decisions issued by the State as also other statutory principles governing the same but then a tariff framed by it cannot be held to be ultra vires only because it did not take into consideration certain principles laid down in clauses (c) to (g) of sub-section (2) of Section 29 of the 1998 Act. *** 41. We have, however, no hesitation in finding that the State Electricity Board had the requisite jurisdiction to revise a tariff till such time as the Commission was constituted and the purposes of the 1998 Act could be achieved through it. Till the time the Regulatory Commission was not constituted by the State of Kerala, the power to determine tariff remained with the Board under the Electricity (Supply) Act, 1948 as it was not repealed by the Electricity Regulatory Commissions Act, 1998. Parliament could not have intended to bring about a situation where no authority would be empowered to determine the tariff between the date of coming into force of the ERC Act, 1998 and the constitution of the Commission. It is only after the Regulatory Commission is constituted that it will be the sole authority to determine the tariff. The decision of BSES Ltd. v. Tata Power Co. Ltd., (2004) 1 SCC 195, has been explained in Binani Zinc Limited (supra). 25. Concerning circular dated 2.9.1999, which remained in force till 28.4.2000, the Commission as well as the APTEL were required to consider impact of Commission earlier order passed on 10.1.2002 and also its observations made in the said order that CPP is a policy matter and that Commission was recently conferred with the power under Section 22(2) of the Act of 1998, it ought to have gone into the merits of the claim. It was also pointed out on behalf of appellantMSEDCL that it had submitted circulars for approval to Commission, which has not gone into the merits of the subject matter and later quashed circulars on the ground of competence. The MSEDCL filed circulars along with tariff proposal for approval as that was an essence of the tariff. 26. It has also been pointed out that in subsequent orders also, circulars as to CPP were relied upon by the Commission. It was incumbent upon the Commission to consider the effect of its orders and the prayer made by the appellant-MSEDCL to consider merits of various circulars while fixing the tariff. 27. As dispute pertains to the period from 2.9.1999 to 28.4.2000, and it is apparent from the additional affidavit filed by the appellantMSEDCL that the respondents used supply of electricity to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. In the peculiar facts of the case, as the Commission earlier opined in order dated 10.1.2002 that CPP is a policy matter and it did not decide as to the merits of subject matter as prayer for approval was made by the appellant-MSEDCL. The Commission observed that it would consider the matter in the future, but later on, without considering on merits the reasonableness of the demand, the Commission quashed the circulars. It is apparent that the liability was passed on to the buyers/consumers by the respondent nos.3 to 7 as electricity was used to manufacture their products sold in the market, working out the price based on expenditure. It would not be appropriate in the peculiar facts of the case to direct refund to be made by the appellant-MSEDCL of the amount recovered by it as it would tantamount to unjust enrichment. Thus, in the peculiar facts and circumstances of the case, it is not considered appropriate to remit the matter to decide the dispute on merits after two decades for the period from 2.9.1999 to 28.4.2000, during which circular dated 2.9.1999 was in force.
### Response:
1
### Explanation:
The circular issued before that could not have been quashed on the ground that MSEB had no power to issue them without the approval of the Commission. The decisions in that regard of Commission as well as of APTEL are liable to be set aside27. As dispute pertains to the period from 2.9.1999 to 28.4.2000, and it is apparent from the additional affidavit filed by the appellantMSEDCL that the respondents used supply of electricity to manufacture their products. The cost incurred on production has been passed on to the buyers/consumers buying their products. Hence, it would tantamount to unjust enrichment in case a refund is ordered. In the peculiar facts of the case, as the Commission earlier opined in order dated 10.1.2002 that CPP is a policy matter and it did not decide as to the merits of subject matter as prayer for approval was made by the appellant-MSEDCL. The Commission observed that it would consider the matter in the future, but later on, without considering on merits the reasonableness of the demand, the Commission quashed the circulars. It is apparent that the liability was passed on to the buyers/consumers by the respondent nos.3 to 7 as electricity was used to manufacture their products sold in the market, working out the price based on expenditure. It would not be appropriate in the peculiar facts of the case to direct refund to be made by the appellant-MSEDCL of the amount recovered by it as it would tantamount to unjust enrichment. Thus, in the peculiar facts and circumstances of the case, it is not considered appropriate to remit the matter to decide the dispute on merits after two decades for the period from 2.9.1999 to 28.4.2000, during which circular dated 2.9.1999 was in force.
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PUNJAB STATE POWER CORPORATION LIMITED Vs. EMTA COAL LIMITED & ANR | 1. The impugned judgment dated 10.12.2019 is grounded on the fact that the impugned order passed by the Arbitral Tribunal on 08.01.2017 was challenged only 2½ years late and the petitioner filed the writ petition at the last minute after the arguments had concluded before the Arbitral Tribunal. Based on this ground, the writ petition has been dismissed, filed under Article 227 directly against a section 16 application without following the drill of section 16 of the Arbitration Act. 2. Shri K. V. Vishwanathan, learned senior counsel appearing for the petitioner, has argued before us, based on our judgment in Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd. & Anr. (2019) SCC Online SC 1602, and paragraph 16 in particular, which is set out hereinbelow: 16. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provisions which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction 3. According to Shri Vishwanathan, one look at the Joint Venture Agreement and the arbitration clause therein would make it clear that the third party in this case had not been referred to at all, as a result of which there is a patent lack of inherent jurisdiction within the meaning of paragraph 16 of the Deep Industries Ltd. (supra). 4. We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face. 5. Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things. | 0[ds]4. We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.5. Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things. | 0 | 570 | 207 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
1. The impugned judgment dated 10.12.2019 is grounded on the fact that the impugned order passed by the Arbitral Tribunal on 08.01.2017 was challenged only 2½ years late and the petitioner filed the writ petition at the last minute after the arguments had concluded before the Arbitral Tribunal. Based on this ground, the writ petition has been dismissed, filed under Article 227 directly against a section 16 application without following the drill of section 16 of the Arbitration Act. 2. Shri K. V. Vishwanathan, learned senior counsel appearing for the petitioner, has argued before us, based on our judgment in Deep Industries Ltd. v. Oil and Natural Gas Corporation Ltd. & Anr. (2019) SCC Online SC 1602, and paragraph 16 in particular, which is set out hereinbelow: 16. This being the case, there is no doubt whatsoever that if petitions were to be filed under Articles 226/227 of the Constitution against orders passed in appeals under Section 37, the entire arbitral process would be derailed and would not come to fruition for many years. At the same time, we cannot forget that Article 227 is a constitutional provisions which remains untouched by the non-obstante clause of Section 5 of the Act. In these circumstances, what is important to note is that though petitions can be filed under Article 227 against judgments allowing or dismissing first appeals under Section 37 of the Act, yet the High Court would be extremely circumspect in interfering with the same, taking into account the statutory policy as adumbrated by us herein above so that interference is restricted to orders that are passed which are patently lacking in inherent jurisdiction 3. According to Shri Vishwanathan, one look at the Joint Venture Agreement and the arbitration clause therein would make it clear that the third party in this case had not been referred to at all, as a result of which there is a patent lack of inherent jurisdiction within the meaning of paragraph 16 of the Deep Industries Ltd. (supra). 4. We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face. 5. Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.
### Response:
0
### Explanation:
4. We are of the view that a foray to the writ Court from a section 16 application being dismissed by the Arbitrator can only be if the order passed is so perverse that the only possible conclusion is that there is a patent lack in inherent jurisdiction. A patent lack of inherent jurisdiction requires no argument whatsoever – it must be the perversity of the order that must stare one in the face.5. Unfortunately, parties are using this expression which is in our judgment in Deep Industries Ltd., to go to the 227 Court in matters which do not suffer from a patent lack of inherent jurisdiction. This is one of them. Instead of dismissing the writ petition on the ground stated, the High Court would have done well to have referred to our judgment in Deep Industries Ltd. and dismiss the 227 petition on the ground that there is no such perversity in the order which leads to a patent lack of inherent jurisdiction. The High Court ought to have discouraged similar litigation by imposing heavy costs. The High Court did not choose to do either of these two things.
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Sarita Nagari Phase ?? 2 Co-Operative Housing Society Limited & Others Vs. The State of Maharashtra, Through The) Minister For Co-Operation & Others | residence or place of business of such person which shall be within the city, town or village in which the building is located;(i) Provision as to the percentage of votes by the apartment owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property;(j) Any other details in connection with the property which the person executing the Declaration may seem desirable to set forth consistent with this Act;(k) The method by which the Declaration may be amended, consistent with the provisions of this Act.(2) A true copy of each of the Declaration and bye-laws and all amendments to the Declaration or the bye-laws shall be filed in the office of the competent authority.40. A perusal of the declaration in the present case shows that it is clearly a hurriedly executed document, which violates rights of the flat purchasers under the MOFA Act and the Apartment Act. Section 4(1)(v) of the MOFA Act specifically provides that the agreement between the flat purchaser and the developer shall specify the precise nature of organisation to be constituted of the persons who take the flats. While various clauses of the agreement in the present case, quoted above, show that it was specified that a Cooperative Society would be formed, but, the hurriedly executed declaration violates this specification. Section 11(1) of the MOFA Act provides that the promoter (developer in the present case) shall take all necessary steps and execute all relevant documents to convey title to the organisation of persons in accordance with the agreement under Section 4 of the MOFA Act. As stated above, in terms of the agreements entered into between the respondent developer and flat purchasers, such organisation of persons was to be a Cooperative Society. The hurriedly executed declaration by the respondent developer and the owner, by catching hold of five flat purchasers, violated the said mandate and hence it cannot be held to be a valid declaration in law.41. Apart from this, the declaration does violence to Sections 6 and 11 of the Apartment Act, as it does not fully disclose the extent of common areas and facilities available to the flat purchasers, because it does not disclose the common areas retained by the respondent developer. In fact, it is a unilaterally executed document, which takes away the right of the flat purchasers to be able to determine such use of common areas and facilities by formation of Cooperative Society, which, in fact, was contemplated in the agreement that they signed with the respondent developer. There is substance in the contention of the petitioners that the declaration dated 27.12.1999, executed by the Respondent Developer and the land owner violates second proviso to Section 2 of the Apartment Act, as it specifies that the owner will grant lease of the land to apartment owners and terms and conditions of such lease shall be disclosed in the declaration, which has not been done in the present case. Hence, the said declaration cannot be said to be a declaration as provided under the Apartment Act as contemplated under Section 10(2) of the MOFA Act. Consequently, it could not have rendered unlawful, the formation of Cooperative Societies by flat purchasers/members of the petitioner Cooperative Societies.42. As noted hereinabove, facts in the present case show that in Writ Petition No. 798 of 2005, there are 244 flat purchasers who are members of the Cooperative Society, while in Writ Petition No. 414 of 2005, there are 52 flat purchaser members. As opposed to this, only 33 flat purchasers are members of the Apartment Association contemplated in the hurriedly executed declaration and even they are paying monthly charges to the Cooperative Societies. These Cooperative Societies have been functioning for the benefit of the flat purchasers/members for more than 17 years.43. Thus, an overwhelming majority of the flat purchasers have opted for and formed Cooperative Societies and this aspect cannot be overlooked. The amendment to Article 19(1)(C) by the 97th amendment of Constitution by addition of the words Cooperative Societies is also an aspect that has to be taken into consideration. Even prior to the amendment, the right of the flat purchasers was protected under Article 19(1)(C) of the Constitution. The whole object of the amendment is to further fortify the cooperative movement and the fact that the cooperative spirit has to be encouraged. The Honble Supreme Court in the case of Vipulbhai Vs. Gujarat Cooperative Milk Marketing Federation Ltd. (2015) 8 SCC 1 , has noted that a Cooperative is an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise and that Cooperatives are based on the values of self help, self responsibility, democracy, equality, equity and solidarity. The formation of Cooperative Society by the flat purchasers is intended to ensure that they are able to take care of their own welfare and that they are not defendant on the Respondent Developer. This cannot be permitted to be scuttled by the hurriedly executed declaration by the developer, particularly when the agreements entered into by the developer with the flat purchasers specifically provided for formation of Cooperative Society.44. We are not discussing the judgments relied upon by the counsel for the parties because they were decided on the facts of the respective cases.45. As regards the apprehension expressed on behalf of the Respondent Developer that if the Cooperative Society is allowed to persist, the Respondent Developer would find it difficult to undertake construction of proposed additional constructions in the sanctioned layout, it is made clear that the rights of the Respondent Developer would not be adversely affected only because the flat purchasers have formed a Cooperative Society. The rights of the Respondent Developer would be governed by the relevant provisions of law and the agreements executed by the Respondent Developer with the flat purchasers. Therefore, the apprehension of the Respondent Developer is misplaced. | 1[ds]25. The learned counsel appearing on behalf of the Respondent Developer is correct when he points out that although references have been made to formation of Cooperative Society at various places in the flat purchasers agreement, at the same time reference is also made to apartments/corporate body and that clause 24 very specifically states that the agreement shall be subject to provisions of the Apartment Act and Rules framed thereunder.26. Thus, one of the issues in these writ petitions before this Court is, as to whether the flat purchasers were given a promise by the Respondent Developer of formation of Cooperative Society or that they had acquiesced to formation of an apartment association/condominium in terms of the Apartment Act. On an analysis of the various clauses of the flat purchasers agreement, it is evident that formation of Cooperative Society of the flat purchasers was clearly mandated under the agreement, although it was also stated that the agreement would always be subject to the provisions of the Apartment Act. This would show that the flat purchasers who have formed the Petitioner Societies are justified in claiming that they purchased flats from the Respondent Developer because they were given assurance that Cooperative Society of flat purchasers would be eventually formed and that this was one of the factors which went into their decision of purchasing flats from the Respondent Developer. As regards the agreement being subject to the Apartment Act, it would mean that the provisions of the Apartment Act would have to be applied strictly in the present case.27. Apart from this, it is an admitted position that affidavits were taken from the flat purchasers in terms of the requirements of MCS Act and Rules wherein the flat purchasers were required to state that they or any dependent member of the family were not members of any Cooperative Housing Society in the area of operation of the proposed housing Society. The fact that such affidavits were taken from the flat purchasers by the Respondent Developer while entering into flat purchase agreements, shows that at all times the formation of Cooperative Society of flat purchasers was intended.28. Another relevant aspect highlighted on behalf of the Petitioners is that even the order of exemption passed under the provisions of Urban Land (Ceiling and Regulation) Act, 1976, states that the persons applying for exemption had stated in their application that the exemption was sought for the land in question for construction of tenements that would be governed by the MOFA Act or the MCS Act. Therefore, right from the stage of inception of the project of construction of apartments, starting with the issuance of the exemption order under the provisions of the Urban Land (Ceiling and Regulation) Act, 1976, to the execution of flat purchase agreements, it was held out that a Cooperative Society of flat purchasers would be formed.29. It is in this backdrop that the contentions of the parties will have to be appreciated to examine as to whether the petitioners are justified in claiming that when the flat purchasers were about to form the Cooperative Society as the Respondent Developer had failed to form such a Society mandated under Section 10(1) of the MOFA Act, the Respondent Developer rushed into execution and registration of a declaration under Section 10(2) of the MOFA Act by catching hold of five flat purchasers along with the owner and sought to scuttle formation of the Cooperative Society in a most illegal and highhanded manner.In the light of the above, the said contention raised on behalf of the Petitioners stands rejected. As a result, what remains to be considered is whether the Respondent Developer had complied with the requirements of Section 10 (2) of the MOFA Act in a strict manner so as to successfully claim that upon the declaration being executed, registered and intimated to the Registrar under the MCS Act, it was no longer lawful for the flat purchasers to form a Cooperative Society. The requirements of Section 10 (2) of the MOFA Act are that a declaration as contemplated under the provisions of the Apartment Act is to be executed and registered and then this fact is to be informed to the Registrar as defined under the MCS Act so as to render formation of Cooperative Society by flat purchasers as unlawful.32. Since the effect of the Respondent Developer along with the owner executing such declaration under Section 10(2) of the MOFA Act, is drastic for the flat purchasers, as they are prevented from forming a Cooperative Society, it is necessary that such a declaration is scrutinized closely and it is to be examined whether it strictly complies with the requirements of Section 10(2) of the MOFA Act and the provisions of the Apartment Act.33. In the instant case, the admitted position about the chronological sequence of events shows that the declaration was executed and registered prior to the flat purchasers submitting their application for formation of Cooperative Society under the provisions of the MCS Act. The fact that execution and registration of such declaration by the Respondent Developer and the owner was intimated to the competent authority under the MCS Act has not been disputed by the petitioners and it is so recorded in the orders passed by the authorities under the MCS Act. Therefore, it is contended on behalf of the Respondent Developer that by operation of Section 10(2) of the MOFA Act, the flat purchasers could not have formed a Cooperative Society.We have given thoughtful consideration to the said contentions raised by both parties on the question as to whether the said declaration can be relied upon for rendering formation of Cooperative Societies by the petitioners as unlawful. In the aforementioned judgment in the case of Paul Parambi .vs. The Bombay Dyeing and Manufacturing Co.Ltd. (supra), this Court, while considering the question as to the nature of the declaration and whether it was contrary to provisions of the Apartment Act, has held in the facts of the said case that a deed of declaration ex facie contrary to the provisions of the Apartment Act could not be considered as a declaration at all for the purposes of Section 10(2) of the MOFA Act. In that case, the owner of the property had unilaterally executed such a declaration despite the fact that 80% of the flats had been already sold. While deciding that case, this Court took into consideration the fact that since the flat purchasers lose their right to form a Cooperative Society, it has to be seen whether the declaration strictly complies with the provisions of the Apartment Act to prevent the flat purchasers from forming a Cooperative Society under Section 10(2) of the MOFA Act.As regards the reliance placed by the learned counsel for the Respondent Developer on Section 31 of the Specific Relief Act, 1963, to contend that the Petitioners would first have to successfully prove before a Civil Court that the declaration executed by the Respondent Developer was bad in law or voidable and then they would be entitled to claim that such a declaration could not be the basis for preventing them from formation of Cooperative Society under Section 10(2) of the MOFA Act, we find that in the said case of Paul Parambi (supra), this Court has found the declaration to be ex facie contrary to the provisions of the Apartment Act, despite the fact that in the said case the flat purchasers had instituted a suit in respect of declaration, which was pending. Thus, even when a civil suit on the said question was pending, this Court has examined the issue as to whether the declaration executed was in terms of the provisions of the Apartment Act or not. Therefore, we find that while deciding these writ petitions, this Court can certainly look into the question as to whether the declaration relied upon by the Respondent Developer, which has the drastic consequence of preventing the Petitioners from forming the Cooperative Society under Section 10(2) of the MOFA Act, is or is not in terms of the requirements of the Apartment Act. This is particularly so because Section 10(2) of the MOFA Act clearly states that such declaration ought to be in terms of the provisions of the Apartment Act. The failure to adhere to the provisions of the Apartment Act can certainly be examined in the instant case. It is also necessary to examine whether the hurriedly executed declaration in the present case infringes any valuable rights that accrued to the flat purchasers/members of the petitionerCooperative Societies underthe provisions of the MOFA Act.A perusal of the declaration in the present case shows that it is clearly a hurriedly executed document, which violates rights of the flat purchasers under the MOFA Act and the Apartment Act. Section 4(1)(v) of the MOFA Act specifically provides that the agreement between the flat purchaser and the developer shall specify the precise nature of organisation to be constituted of the persons who take the flats. While various clauses of the agreement in the present case, quoted above, show that it was specified that a Cooperative Society would be formed, but, the hurriedly executed declaration violates this specification. Section 11(1) of the MOFA Act provides that the promoter (developer in the present case) shall take all necessary steps and execute all relevant documents to convey title to the organisation of persons in accordance with the agreement under Section 4 of the MOFA Act. As stated above, in terms of the agreements entered into between the respondent developer and flat purchasers, such organisation of persons was to be a Cooperative Society. The hurriedly executed declaration by the respondent developer and the owner, by catching hold of five flat purchasers, violated the said mandate and hence it cannot be held to be a valid declaration in law.41. Apart from this, the declaration does violence to Sections 6 and 11 of the Apartment Act, as it does not fully disclose the extent of common areas and facilities available to the flat purchasers, because it does not disclose the common areas retained by the respondent developer. In fact, it is a unilaterally executed document, which takes away the right of the flat purchasers to be able to determine such use of common areas and facilities by formation of Cooperative Society, which, in fact, was contemplated in the agreement that they signed with the respondent developer. There is substance in the contention of the petitioners that the declaration dated 27.12.1999, executed by the Respondent Developer and the land owner violates second proviso to Section 2 of the Apartment Act, as it specifies that the owner will grant lease of the land to apartment owners and terms and conditions of such lease shall be disclosed in the declaration, which has not been done in the present case. Hence, the said declaration cannot be said to bedeclaration as provided under the Apartment Act as contemplated under Section 10(2) of the MOFA Act. Consequently, it could not have rendered unlawful, the formation of Cooperative Societies by flat purchasers/members of the petitioner Cooperative Societies.42. As noted hereinabove, facts in the present case show that in Writ Petition No. 798 of 2005, there are 244 flat purchasers who are members of the Cooperative Society, while in Writ Petition No. 414 of 2005, there are 52 flat purchaser members. As opposed to this, only 33 flat purchasers are members of the Apartment Association contemplated in the hurriedly executed declaration and even they are paying monthly charges to the Cooperative Societies. These Cooperative Societies have been functioning for the benefit of the flat purchasers/members for more than 17 years.43. Thus, an overwhelming majority of the flat purchasers have opted for and formed Cooperative Societies and this aspect cannot be overlooked. The amendment to Article 19(1)(C) by the 97th amendment of Constitution by addition of the words Cooperative Societies is also an aspect that has to be taken into consideration. Even prior to the amendment, the right of the flat purchasers was protected under Article 19(1)(C) of the Constitution. The whole object of the amendment is to further fortify the cooperative movement and the fact that the cooperative spirit has to be encouraged. The Honble Supreme Court in the case of Vipulbhai Vs. Gujarat Cooperative Milk Marketing Federation Ltd. (2015) 8 SCC 1 , has noted that a Cooperative is an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise and that Cooperatives are based on the values of self help, self responsibility, democracy, equality, equity and solidarity. The formation of Cooperative Society by the flat purchasers is intended to ensure that they are able to take care of their own welfare and that they are not defendant on the Respondent Developer. This cannot be permitted to be scuttled by the hurriedly executed declaration by the developer, particularly when the agreements entered into by the developer with the flat purchasers specifically provided for formation of Cooperative Society.44. We are not discussing the judgments relied upon by the counsel for the parties because they were decided on the facts of the respective cases.45. As regards the apprehension expressed on behalf of the Respondent Developer that if the Cooperative Society is allowed to persist, the Respondent Developer would find it difficult to undertake construction of proposed additional constructions in the sanctioned layout, it is made clear that the rights of the Respondent Developer would not be adversely affected only because the flat purchasers have formed a Cooperative Society. The rights of the Respondent Developer would be governed by the relevant provisions of law and the agreements executed by the Respondent Developer with the flat purchasers. Therefore, the apprehension of the Respondent Developer is misplaced. | 1 | 12,249 | 2,511 | ### Instruction:
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residence or place of business of such person which shall be within the city, town or village in which the building is located;(i) Provision as to the percentage of votes by the apartment owners which shall be determinative of whether to rebuild, repair, restore, or sell the property in the event of damage or destruction of all or part of the property;(j) Any other details in connection with the property which the person executing the Declaration may seem desirable to set forth consistent with this Act;(k) The method by which the Declaration may be amended, consistent with the provisions of this Act.(2) A true copy of each of the Declaration and bye-laws and all amendments to the Declaration or the bye-laws shall be filed in the office of the competent authority.40. A perusal of the declaration in the present case shows that it is clearly a hurriedly executed document, which violates rights of the flat purchasers under the MOFA Act and the Apartment Act. Section 4(1)(v) of the MOFA Act specifically provides that the agreement between the flat purchaser and the developer shall specify the precise nature of organisation to be constituted of the persons who take the flats. While various clauses of the agreement in the present case, quoted above, show that it was specified that a Cooperative Society would be formed, but, the hurriedly executed declaration violates this specification. Section 11(1) of the MOFA Act provides that the promoter (developer in the present case) shall take all necessary steps and execute all relevant documents to convey title to the organisation of persons in accordance with the agreement under Section 4 of the MOFA Act. As stated above, in terms of the agreements entered into between the respondent developer and flat purchasers, such organisation of persons was to be a Cooperative Society. The hurriedly executed declaration by the respondent developer and the owner, by catching hold of five flat purchasers, violated the said mandate and hence it cannot be held to be a valid declaration in law.41. Apart from this, the declaration does violence to Sections 6 and 11 of the Apartment Act, as it does not fully disclose the extent of common areas and facilities available to the flat purchasers, because it does not disclose the common areas retained by the respondent developer. In fact, it is a unilaterally executed document, which takes away the right of the flat purchasers to be able to determine such use of common areas and facilities by formation of Cooperative Society, which, in fact, was contemplated in the agreement that they signed with the respondent developer. There is substance in the contention of the petitioners that the declaration dated 27.12.1999, executed by the Respondent Developer and the land owner violates second proviso to Section 2 of the Apartment Act, as it specifies that the owner will grant lease of the land to apartment owners and terms and conditions of such lease shall be disclosed in the declaration, which has not been done in the present case. Hence, the said declaration cannot be said to be a declaration as provided under the Apartment Act as contemplated under Section 10(2) of the MOFA Act. Consequently, it could not have rendered unlawful, the formation of Cooperative Societies by flat purchasers/members of the petitioner Cooperative Societies.42. As noted hereinabove, facts in the present case show that in Writ Petition No. 798 of 2005, there are 244 flat purchasers who are members of the Cooperative Society, while in Writ Petition No. 414 of 2005, there are 52 flat purchaser members. As opposed to this, only 33 flat purchasers are members of the Apartment Association contemplated in the hurriedly executed declaration and even they are paying monthly charges to the Cooperative Societies. These Cooperative Societies have been functioning for the benefit of the flat purchasers/members for more than 17 years.43. Thus, an overwhelming majority of the flat purchasers have opted for and formed Cooperative Societies and this aspect cannot be overlooked. The amendment to Article 19(1)(C) by the 97th amendment of Constitution by addition of the words Cooperative Societies is also an aspect that has to be taken into consideration. Even prior to the amendment, the right of the flat purchasers was protected under Article 19(1)(C) of the Constitution. The whole object of the amendment is to further fortify the cooperative movement and the fact that the cooperative spirit has to be encouraged. The Honble Supreme Court in the case of Vipulbhai Vs. Gujarat Cooperative Milk Marketing Federation Ltd. (2015) 8 SCC 1 , has noted that a Cooperative is an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise and that Cooperatives are based on the values of self help, self responsibility, democracy, equality, equity and solidarity. The formation of Cooperative Society by the flat purchasers is intended to ensure that they are able to take care of their own welfare and that they are not defendant on the Respondent Developer. This cannot be permitted to be scuttled by the hurriedly executed declaration by the developer, particularly when the agreements entered into by the developer with the flat purchasers specifically provided for formation of Cooperative Society.44. We are not discussing the judgments relied upon by the counsel for the parties because they were decided on the facts of the respective cases.45. As regards the apprehension expressed on behalf of the Respondent Developer that if the Cooperative Society is allowed to persist, the Respondent Developer would find it difficult to undertake construction of proposed additional constructions in the sanctioned layout, it is made clear that the rights of the Respondent Developer would not be adversely affected only because the flat purchasers have formed a Cooperative Society. The rights of the Respondent Developer would be governed by the relevant provisions of law and the agreements executed by the Respondent Developer with the flat purchasers. Therefore, the apprehension of the Respondent Developer is misplaced.
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can certainly look into the question as to whether the declaration relied upon by the Respondent Developer, which has the drastic consequence of preventing the Petitioners from forming the Cooperative Society under Section 10(2) of the MOFA Act, is or is not in terms of the requirements of the Apartment Act. This is particularly so because Section 10(2) of the MOFA Act clearly states that such declaration ought to be in terms of the provisions of the Apartment Act. The failure to adhere to the provisions of the Apartment Act can certainly be examined in the instant case. It is also necessary to examine whether the hurriedly executed declaration in the present case infringes any valuable rights that accrued to the flat purchasers/members of the petitionerCooperative Societies underthe provisions of the MOFA Act.A perusal of the declaration in the present case shows that it is clearly a hurriedly executed document, which violates rights of the flat purchasers under the MOFA Act and the Apartment Act. Section 4(1)(v) of the MOFA Act specifically provides that the agreement between the flat purchaser and the developer shall specify the precise nature of organisation to be constituted of the persons who take the flats. While various clauses of the agreement in the present case, quoted above, show that it was specified that a Cooperative Society would be formed, but, the hurriedly executed declaration violates this specification. Section 11(1) of the MOFA Act provides that the promoter (developer in the present case) shall take all necessary steps and execute all relevant documents to convey title to the organisation of persons in accordance with the agreement under Section 4 of the MOFA Act. As stated above, in terms of the agreements entered into between the respondent developer and flat purchasers, such organisation of persons was to be a Cooperative Society. The hurriedly executed declaration by the respondent developer and the owner, by catching hold of five flat purchasers, violated the said mandate and hence it cannot be held to be a valid declaration in law.41. Apart from this, the declaration does violence to Sections 6 and 11 of the Apartment Act, as it does not fully disclose the extent of common areas and facilities available to the flat purchasers, because it does not disclose the common areas retained by the respondent developer. In fact, it is a unilaterally executed document, which takes away the right of the flat purchasers to be able to determine such use of common areas and facilities by formation of Cooperative Society, which, in fact, was contemplated in the agreement that they signed with the respondent developer. There is substance in the contention of the petitioners that the declaration dated 27.12.1999, executed by the Respondent Developer and the land owner violates second proviso to Section 2 of the Apartment Act, as it specifies that the owner will grant lease of the land to apartment owners and terms and conditions of such lease shall be disclosed in the declaration, which has not been done in the present case. Hence, the said declaration cannot be said to bedeclaration as provided under the Apartment Act as contemplated under Section 10(2) of the MOFA Act. Consequently, it could not have rendered unlawful, the formation of Cooperative Societies by flat purchasers/members of the petitioner Cooperative Societies.42. As noted hereinabove, facts in the present case show that in Writ Petition No. 798 of 2005, there are 244 flat purchasers who are members of the Cooperative Society, while in Writ Petition No. 414 of 2005, there are 52 flat purchaser members. As opposed to this, only 33 flat purchasers are members of the Apartment Association contemplated in the hurriedly executed declaration and even they are paying monthly charges to the Cooperative Societies. These Cooperative Societies have been functioning for the benefit of the flat purchasers/members for more than 17 years.43. Thus, an overwhelming majority of the flat purchasers have opted for and formed Cooperative Societies and this aspect cannot be overlooked. The amendment to Article 19(1)(C) by the 97th amendment of Constitution by addition of the words Cooperative Societies is also an aspect that has to be taken into consideration. Even prior to the amendment, the right of the flat purchasers was protected under Article 19(1)(C) of the Constitution. The whole object of the amendment is to further fortify the cooperative movement and the fact that the cooperative spirit has to be encouraged. The Honble Supreme Court in the case of Vipulbhai Vs. Gujarat Cooperative Milk Marketing Federation Ltd. (2015) 8 SCC 1 , has noted that a Cooperative is an autonomous association of persons united voluntarily to meet their common economic, social and cultural needs and aspirations through a jointly owned and democratically controlled enterprise and that Cooperatives are based on the values of self help, self responsibility, democracy, equality, equity and solidarity. The formation of Cooperative Society by the flat purchasers is intended to ensure that they are able to take care of their own welfare and that they are not defendant on the Respondent Developer. This cannot be permitted to be scuttled by the hurriedly executed declaration by the developer, particularly when the agreements entered into by the developer with the flat purchasers specifically provided for formation of Cooperative Society.44. We are not discussing the judgments relied upon by the counsel for the parties because they were decided on the facts of the respective cases.45. As regards the apprehension expressed on behalf of the Respondent Developer that if the Cooperative Society is allowed to persist, the Respondent Developer would find it difficult to undertake construction of proposed additional constructions in the sanctioned layout, it is made clear that the rights of the Respondent Developer would not be adversely affected only because the flat purchasers have formed a Cooperative Society. The rights of the Respondent Developer would be governed by the relevant provisions of law and the agreements executed by the Respondent Developer with the flat purchasers. Therefore, the apprehension of the Respondent Developer is misplaced.
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Reunion Engineering Company Private Limited Vs. Mrs.Uma Kumar | the Company namely that the debt is time barred. Before the learned single Judge, it appears, two contentions were raised, (i) that giving of C-Form alongwith letter dated 19-9-2003 amounts to payment of part of the debt under Section 19 of the Limitation Act, and (ii) it was claimed that by reply to the statutory notice a promise to pay admitted amount was made therefore under Section 25(3) of the Contract Act, claim was made within the period of limitation.The learned single Judge, however, rejected the argument based on the provisions of Section 19 of the Limitation Act. The learned single Judge, however, held that by reply to the statutory notice there was implied promise made to pay the debt. The learned Judge, therefore, held that debt for which the statutory notice was issued and the company petition was filed was not the debt barred by the law of limitation. However, surprisingly the learned single Judge made a direction in the Company Petition for payment of Rs.9,00,000/- within twelve weeks to the Petitioner by the Respondent-company. Failure to make the payment was to result in admission of the petition. It is this order which is challenged in the Appeal.3. We have heard the learned Counsel for both sides. In our opinion, even accepting the finding recorded by the learned single Judge that in the reply to the statutory notice there is an implied promise made to pay the debt, which was barred by limitation, still in our opinion, it will not amount to promise to pay the time barred debt as contemplated by provisions of sub-section (3) of Section 25 of the Contract Act. The Division Bench of this court in its judgment in the case of Canara Bank and ors. vs. Vijay Shamrao Ghatole and ors. 1996 (5) Bom.C.R. 338, has clearly held that an implied promise to pay a time barred debt is not covered by Section 25 of the Contract Act. Observations made by the Division Bench in paragraphs 15 & 16 of that judgment are relevant. They read as under:-"15. It is,thus, clear from the perusal of section 25(3) of the Contract Act that when there is a promise to pay the time barred debt made in writing as envisaged therein, it is treated as a contract and therefore such a promise would furnish a fresh cause of action to the creditor. The dispute between the parties upon the construction of Section 25(3) of the Contract Act is that according to the learned Counsel for the plaintiff-Bank, any implied promise is covered by section 25(3) whereas according to the learned Counsel for the respondent No.1 the promise to pay the time barred debt must be express and in writing. In support of his submission, the learned Counsel appearing for the plaintiff Bank has relied upon the judgment of the learned Single Judge of this Court in the case of (M/s R.Sureshchandra & Co. v. M/s.Vadnere Chemicals Works and others), A.I.R. 1991 Bom. 44 ; 1990 Bank.J. 536 (Bom.), and also upon the judgment of another learned single Judge of this Court in the case of (M/s.Manekchand Mohanala v. Shah Bhimji and Co.), 1969 Mah.L.J. 698.""16. The learned Counsel appearing for the defendant No.1 has, however, relied upon the decision of the Division Bench of this Court in the case of (Manganlal Harjibhai & others v. Aminchand Gulabji and others), A.I.R. 1928 Bom. 319, and in the case of (Balkrishna Mansukhram v. Jayshankar Narayan), A.I.R. 1938 Bom. 460 . Besides the judgment of the Division Bench Maganlal v. Amichand, (cited supra), he has also relied upon the judgment of the erstwhile Lahore High Court in the case of (Basheshar Nath Goela v. Baji Nath & others), A.I.R. 1938 Lah. 264, and the judgment of the Full Bench of the Kerala High Court in the case of (Chacko Varkey v. Thommen Thomas), A.I.R 1958 Ker. 31 . The judgments of the Division Bench of this Court cited supra have taken the view that the promise to pay the time barred debt must be express so as to constitute the contract under section 25(3) of the Contract Act. The said view taken by the Division Bench is binding upon us in preference to the view taken by the Single Bench of this Court in the judgments (cited supra) relied upon on behalf of the plaintiff-Bank." (emphasis supplied)4. It is, thus, clear that for enabling a person to institute a suit for recovery of time barred debt on the basis of provision of Section 25(3) of the Contract Act, there has to be express promise to pay and not implied promise, as has been held by the learned single Judge. Therefore, the finding of the learned Single Judge is clearly contrary to the law laid down by the Division Bench in the case of Canara Bank, referred to above. The learned Counsel appearing for the original Petitioner tried to submit that the learned single Judge was not justified in rejecting his submission made under the provisions of Section 19 of the Limitation Act. According to him, submission of C-Form on 19-9-2003 amounts to part payment. In our opinion, that submission cannot be advanced by the original Petitioner in the absence of filing any affidavit putting the Appellant on notice that such a contention is intended to be advanced in the Appeal. In our opinion, in any case the learned single Judge could not have made an order for payment of Rs. 9,00,000/- in the Company Petition. The most that could have been done by the learned single Judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original Petitioner has not filed a civil suit for recovery of the amount, which according to the original Petitioner was due to him, the appropriate order would be to set aside the order passed by the learned Single Judge.5. In our opinion, therefore, following order would meet the ends of justice. | 1[ds]We have heard the learned Counsel for both sides. In our opinion, even accepting the finding recorded by the learned single Judge that in the reply to the statutory notice there is an implied promise made to pay the debt, which was barred by limitation, still in our opinion, it will not amount to promise to pay the time barred debt as contemplated by provisions of(3) of Section 25 of the Contract Act. The Division Bench of this court in its judgment in the case of Canara Bank and ors. vs. Vijay Shamrao Ghatole and ors. 1996 (5) Bom.C.R. 338, has clearly held that an implied promise to pay a time barred debt is not covered by Section 25 of the Contract Act. Observations made by the Division Bench in paragraphs 1516 of that judgment are relevant. They read asIt is,thus, clear from the perusal of section 25(3) of the Contract Act that when there is a promise to pay the time barred debt made in writing as envisaged therein, it is treated as a contract and therefore such a promise would furnish a fresh cause of action to the creditor. The dispute between the parties upon the construction of Section 25(3) of the Contract Act is that according to the learned Counsel for theany implied promise is covered by section 25(3) whereas according to the learned Counsel for the respondent No.1 the promise to pay the time barred debt must be express and in writing. In support of his submission, the learned Counsel appearing for the plaintiff Bank has relied upon the judgment of the learned Single Judge of this Court in the case of (M/s R.SureshchandraCo. v. M/s.Vadnere Chemicals Works and others), A.I.R. 1991 Bom. 44 ; 1990 Bank.J. 536 (Bom.), and also upon the judgment of another learned single Judge of this Court in the case of (M/s.Manekchand Mohanala v. Shah Bhimji and Co.), 1969 Mah.L.J. 698.""16. The learned Counsel appearing for the defendant No.1 has, however, relied upon the decision of the Division Bench of this Court in the case of (Manganlal Harjibhaiothers v. Aminchand Gulabji and others), A.I.R. 1928 Bom. 319, and in the case of (Balkrishna Mansukhram v. Jayshankar Narayan), A.I.R. 1938 Bom. 460 . Besides the judgment of the Division Bench Maganlal v. Amichand, (cited supra), he has also relied upon the judgment of the erstwhile Lahore High Court in the case of (Basheshar Nath Goela v. Baji Nathothers), A.I.R. 1938 Lah. 264, and the judgment of the Full Bench of the Kerala High Court in the case of (Chacko Varkey v. Thommen Thomas), A.I.R 1958 Ker. 31 . The judgments of the Division Bench of this Court cited supra have taken the view that the promise to pay the time barred debt must be express so as to constitute the contract under section 25(3) of the Contract Act. The said view taken by the Division Bench is binding upon us in preference to the view taken by the Single Bench of this Court in the judgments (cited supra) relied upon on behalf of theIt is, thus, clear that for enabling a person to institute a suit for recovery of time barred debt on the basis of provision of Section 25(3) of the Contract Act, there has to be express promise to pay and not implied promise, as has been held by the learned single Judge. Therefore, the finding of the learned Single Judge is clearly contrary to the law laid down by the Division Bench in the case of Canara Bank, referred to above. The learned Counsel appearing for the original Petitioner tried to submit that the learned single Judge was not justified in rejecting his submission made under the provisions of Section 19 of the Limitation Act. According to him, submission of03 amounts to part payment. In our opinion, that submission cannot be advanced by the original Petitioner in the absence of filing any affidavit putting the Appellant on notice that such a contention is intended to be advanced in the Appeal. In our opinion, in any case the learned single Judge could not have made an order for payment of Rs. 9,00,000/in the Company Petition. The most that could have been done by the learned single Judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original Petitioner has not filed a civil suit for recovery of the amount, which according to the original Petitioner was due to him, the appropriate order would be to set aside the order passed by the learned Single Judge.5.In our opinion, therefore, following order would meet the ends of justice. | 1 | 1,283 | 894 | ### 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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the Company namely that the debt is time barred. Before the learned single Judge, it appears, two contentions were raised, (i) that giving of C-Form alongwith letter dated 19-9-2003 amounts to payment of part of the debt under Section 19 of the Limitation Act, and (ii) it was claimed that by reply to the statutory notice a promise to pay admitted amount was made therefore under Section 25(3) of the Contract Act, claim was made within the period of limitation.The learned single Judge, however, rejected the argument based on the provisions of Section 19 of the Limitation Act. The learned single Judge, however, held that by reply to the statutory notice there was implied promise made to pay the debt. The learned Judge, therefore, held that debt for which the statutory notice was issued and the company petition was filed was not the debt barred by the law of limitation. However, surprisingly the learned single Judge made a direction in the Company Petition for payment of Rs.9,00,000/- within twelve weeks to the Petitioner by the Respondent-company. Failure to make the payment was to result in admission of the petition. It is this order which is challenged in the Appeal.3. We have heard the learned Counsel for both sides. In our opinion, even accepting the finding recorded by the learned single Judge that in the reply to the statutory notice there is an implied promise made to pay the debt, which was barred by limitation, still in our opinion, it will not amount to promise to pay the time barred debt as contemplated by provisions of sub-section (3) of Section 25 of the Contract Act. The Division Bench of this court in its judgment in the case of Canara Bank and ors. vs. Vijay Shamrao Ghatole and ors. 1996 (5) Bom.C.R. 338, has clearly held that an implied promise to pay a time barred debt is not covered by Section 25 of the Contract Act. Observations made by the Division Bench in paragraphs 15 & 16 of that judgment are relevant. They read as under:-"15. It is,thus, clear from the perusal of section 25(3) of the Contract Act that when there is a promise to pay the time barred debt made in writing as envisaged therein, it is treated as a contract and therefore such a promise would furnish a fresh cause of action to the creditor. The dispute between the parties upon the construction of Section 25(3) of the Contract Act is that according to the learned Counsel for the plaintiff-Bank, any implied promise is covered by section 25(3) whereas according to the learned Counsel for the respondent No.1 the promise to pay the time barred debt must be express and in writing. In support of his submission, the learned Counsel appearing for the plaintiff Bank has relied upon the judgment of the learned Single Judge of this Court in the case of (M/s R.Sureshchandra & Co. v. M/s.Vadnere Chemicals Works and others), A.I.R. 1991 Bom. 44 ; 1990 Bank.J. 536 (Bom.), and also upon the judgment of another learned single Judge of this Court in the case of (M/s.Manekchand Mohanala v. Shah Bhimji and Co.), 1969 Mah.L.J. 698.""16. The learned Counsel appearing for the defendant No.1 has, however, relied upon the decision of the Division Bench of this Court in the case of (Manganlal Harjibhai & others v. Aminchand Gulabji and others), A.I.R. 1928 Bom. 319, and in the case of (Balkrishna Mansukhram v. Jayshankar Narayan), A.I.R. 1938 Bom. 460 . Besides the judgment of the Division Bench Maganlal v. Amichand, (cited supra), he has also relied upon the judgment of the erstwhile Lahore High Court in the case of (Basheshar Nath Goela v. Baji Nath & others), A.I.R. 1938 Lah. 264, and the judgment of the Full Bench of the Kerala High Court in the case of (Chacko Varkey v. Thommen Thomas), A.I.R 1958 Ker. 31 . The judgments of the Division Bench of this Court cited supra have taken the view that the promise to pay the time barred debt must be express so as to constitute the contract under section 25(3) of the Contract Act. The said view taken by the Division Bench is binding upon us in preference to the view taken by the Single Bench of this Court in the judgments (cited supra) relied upon on behalf of the plaintiff-Bank." (emphasis supplied)4. It is, thus, clear that for enabling a person to institute a suit for recovery of time barred debt on the basis of provision of Section 25(3) of the Contract Act, there has to be express promise to pay and not implied promise, as has been held by the learned single Judge. Therefore, the finding of the learned Single Judge is clearly contrary to the law laid down by the Division Bench in the case of Canara Bank, referred to above. The learned Counsel appearing for the original Petitioner tried to submit that the learned single Judge was not justified in rejecting his submission made under the provisions of Section 19 of the Limitation Act. According to him, submission of C-Form on 19-9-2003 amounts to part payment. In our opinion, that submission cannot be advanced by the original Petitioner in the absence of filing any affidavit putting the Appellant on notice that such a contention is intended to be advanced in the Appeal. In our opinion, in any case the learned single Judge could not have made an order for payment of Rs. 9,00,000/- in the Company Petition. The most that could have been done by the learned single Judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original Petitioner has not filed a civil suit for recovery of the amount, which according to the original Petitioner was due to him, the appropriate order would be to set aside the order passed by the learned Single Judge.5. In our opinion, therefore, following order would meet the ends of justice.
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### Explanation:
We have heard the learned Counsel for both sides. In our opinion, even accepting the finding recorded by the learned single Judge that in the reply to the statutory notice there is an implied promise made to pay the debt, which was barred by limitation, still in our opinion, it will not amount to promise to pay the time barred debt as contemplated by provisions of(3) of Section 25 of the Contract Act. The Division Bench of this court in its judgment in the case of Canara Bank and ors. vs. Vijay Shamrao Ghatole and ors. 1996 (5) Bom.C.R. 338, has clearly held that an implied promise to pay a time barred debt is not covered by Section 25 of the Contract Act. Observations made by the Division Bench in paragraphs 1516 of that judgment are relevant. They read asIt is,thus, clear from the perusal of section 25(3) of the Contract Act that when there is a promise to pay the time barred debt made in writing as envisaged therein, it is treated as a contract and therefore such a promise would furnish a fresh cause of action to the creditor. The dispute between the parties upon the construction of Section 25(3) of the Contract Act is that according to the learned Counsel for theany implied promise is covered by section 25(3) whereas according to the learned Counsel for the respondent No.1 the promise to pay the time barred debt must be express and in writing. In support of his submission, the learned Counsel appearing for the plaintiff Bank has relied upon the judgment of the learned Single Judge of this Court in the case of (M/s R.SureshchandraCo. v. M/s.Vadnere Chemicals Works and others), A.I.R. 1991 Bom. 44 ; 1990 Bank.J. 536 (Bom.), and also upon the judgment of another learned single Judge of this Court in the case of (M/s.Manekchand Mohanala v. Shah Bhimji and Co.), 1969 Mah.L.J. 698.""16. The learned Counsel appearing for the defendant No.1 has, however, relied upon the decision of the Division Bench of this Court in the case of (Manganlal Harjibhaiothers v. Aminchand Gulabji and others), A.I.R. 1928 Bom. 319, and in the case of (Balkrishna Mansukhram v. Jayshankar Narayan), A.I.R. 1938 Bom. 460 . Besides the judgment of the Division Bench Maganlal v. Amichand, (cited supra), he has also relied upon the judgment of the erstwhile Lahore High Court in the case of (Basheshar Nath Goela v. Baji Nathothers), A.I.R. 1938 Lah. 264, and the judgment of the Full Bench of the Kerala High Court in the case of (Chacko Varkey v. Thommen Thomas), A.I.R 1958 Ker. 31 . The judgments of the Division Bench of this Court cited supra have taken the view that the promise to pay the time barred debt must be express so as to constitute the contract under section 25(3) of the Contract Act. The said view taken by the Division Bench is binding upon us in preference to the view taken by the Single Bench of this Court in the judgments (cited supra) relied upon on behalf of theIt is, thus, clear that for enabling a person to institute a suit for recovery of time barred debt on the basis of provision of Section 25(3) of the Contract Act, there has to be express promise to pay and not implied promise, as has been held by the learned single Judge. Therefore, the finding of the learned Single Judge is clearly contrary to the law laid down by the Division Bench in the case of Canara Bank, referred to above. The learned Counsel appearing for the original Petitioner tried to submit that the learned single Judge was not justified in rejecting his submission made under the provisions of Section 19 of the Limitation Act. According to him, submission of03 amounts to part payment. In our opinion, that submission cannot be advanced by the original Petitioner in the absence of filing any affidavit putting the Appellant on notice that such a contention is intended to be advanced in the Appeal. In our opinion, in any case the learned single Judge could not have made an order for payment of Rs. 9,00,000/in the Company Petition. The most that could have been done by the learned single Judge was to issue a direction for deposit of the amount. In our opinion, also considering the fact that till today the original Petitioner has not filed a civil suit for recovery of the amount, which according to the original Petitioner was due to him, the appropriate order would be to set aside the order passed by the learned Single Judge.5.In our opinion, therefore, following order would meet the ends of justice.
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